Nelson v. East Side Grocery Co.

THE COURT.

Plaintiff brought this action in the city and county of San Francisco to recover upon a contract for the sale of merchandise. In the caption of his complaint the defendant is named as “East Side Grocery Company, also known as Central Grocery Company.” The complaint in its body alleges the three certain persons—Jacobs, Mc-Meniman and Frenzi—associated themselves together for the purpose of carrying on the retail grocery business in the city of Stockton; that said business was at first transacted under the name of “East Side Grocery Company,” which was later changed to “Central Grocery Company”; that the merchandise for the value of which this suit is brought was sold and delivered to said persons and said company, and

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was not' paid for. In the prayer of his complaint the plaintiff prays for judgment against the alleged association and also against each of the persons named as composing it, for the full amount of the claim. Service of summons was made upon the individuals alleged to have thus associated themselves together under the common name. These appeared individually and moved for a change of place of trial to the county of San Joaquin, their residence. Thereupon the plaintiff presented an affidavit, showing that the contract sued upon was made and was to he performed in the city and county of San Francisco, and that there its breach occurred. This was not denied by the moving, parties. The court ordered the place of trial of the action changed to the county of San Joaquin. The plaintiff appeals.

In support of his appeal the appellant cites article XII, section 16, of the constitution, which provides that “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated.” Counsel for the appellant relies upon the case of

Kendrick

v.

Diamond Creek Mining Co.,

94 Cal. 137, [29 Pac. 324], for the interpretation to be placed upon the term “association” as used in this section of the constitution, and has evidently drawn his pleading with the language of the decision in that case in view. It does not appear from anything the defendants present by way of affidavit that they are anything other than the sort of association which the plaintiff asserts them to be, but they insist that, having been sued as individuals as well as under their associate name, and a personal liability having been alleged and a personal judgment sought against each of them, they are entitled under section 395 of the Code of Civil Procedure to have the action tried in the place where they reside. To this contention the appellant opposes the case of