Pacific States Corp. v. Shepardson

AMES, J., pro tem.

The plaintiff brought, this action in the county of Tulare against J. F. Shepardson and Zora Shepardson, individually and as copartners doing business under the firm name and style of Shepardson Construction Company, defendants, who are the only defendants named in the complaint.

The complaint is in the form of a common count by which plaintiff seeks to recover a sum of $1509.94, alleged to be due and. unpaid upon an open account for goods, wares and merchandise sold and delivered by plaintiff to the defendant and for money advanced by plaintiff for defendants, all at defendants’ special instance and request. The plaintiff further alleges that the plaintiff is a corporation organized and existing under and by virtue of the laws of the state of California, and that the defendants are copartners doing business under the firm name and style of Shepardson Construction Company. The answer admits the

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existence of the plaintiff as a California corporation but denies generally each and all of the other allegations of plaintiff’s complaint.

Simultaneously with the filing of their answer the defendants served and filed a demand for a change of place of trial to the county of Kern, on the ground that the county of Tulare was not a proper county for the trial of said action, and that both defendants (who are husband and wife) were residents of the county of Kern. Said demand was accompanied by a notice and affidavits, and the sufficiency of this proceeding is not attacked by respondent, but at the time of the hearing of said motion a counter-motion was made by respondent to retain the cause for trial in the county of Tulare on the ground of the convenience of witnesses and, after a hearing of both of said motions, the court denied appellants’ motion and ordered the case retained in the county of Tulare, and from that order this appeal is taken.

Respondent’s motion is supported by an affidavit of J. A. Thomas, Jr., the assistant manager of the Tagus ranch property of the respondent. It is alleged in said affidavit that Thomas was a resident of the county of Tulare and had direct charge of the transactions between the parties to this litigation' out of which the cause of action set forth in plaintiff’s complaint arose, and that he will testify that plaintiff and defendants entered into an agreement whereby the defendants were to construct on said Tagus ranch in the county of Tulare three concrete well-pits, and that in connection' with such construction work the defendants agreed to purchase from the plaintiff certain materials needed by them in the doing of said work, and that said defendants would pay the plaintiff for the transportation thereof and for certain other services to be rendered by it, and that defendants agreed to pay the plaintiff such moneys as might be paid by plaintiff to defendants for work which should not prove satisfactory, and which would not be in full accordance and compliance with the plans and specifications for the doing of said work. It is further alleged in said affidavit that affiant would testify that the articles theretofore mentioned in his affidavit were delivered to defendants; that certain moneys were paid out and expended by plaintiff for the account of defendants in con