General Acceptance Corp. v. Robinson

RICHARDS, J.

This appeal is from an order granting a change of place of trial from the city and county of San Francisco, where the action was brought, to the county of Alameda, the residence of the defendant herein. The action was one to recover upon an alleged contract of guaranty claimed to have been made by the defendant in the course of a certain transaction involving the sale or agreement to sell certain automobiles and the transfer of such agreement from the seller thereof to the plaintiff herein. The contract for such transfer was made and entered into by the Auburn Motor Sales Company, seller, and contained certain agreements by which the seller undertook to assure to the transferee of said contract the

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thereof and the ability of the purchaser under said agreement to fulfill the terms thereof. The obligation of the seller under such agreement was therein declared to be an absolute and unconditional one as distinguished from that of a surety, guarantor or indemnifier, and it was agreed therein that said obligation should be enforceable, even though the purchaser’s obligation under the original agreement for the sale of said automobiles should for any reason be suspended or impaired. The seller’s agreement contained the final provision “that should suit be brought upon the contract or this assignment, that the trial of said action be in the City and County of San Francisco, State of California.” The defendant had placed his name at the foot of said contract as “E. C. Robinson, guarantor.” The original contract not having been performed and the Auburn Motor Sales Company not having fulfilled the aforesaid obligation on its part to be performed, this action was commenced in the city and county of San Francisco against the defendant as such guarantor for the recovery in several counts of sums aggregating the sum of $4,534.71, claimed to be due to the plaintiff for the breach of the aforesaid agreement. The defendant upon being served appeared by demurrer and at the time of such appearance duly demanded that the place of trial of said action be changed to the county of Alameda, and

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upon such demand gave notice of motion in due form for the change of such place of trial, supporting the same by a proper affidavit to the effect that the place of residence of the defendant was at all the times mentioned in said complaint in the county of Alameda. He also presented and filed in due form an affidavit of merits. It is not contended by the appellant that there was any defect in the form or substance of the defendant’s moving papers upon said motion, and the sole ground on which the same was resisted upon the hearing thereon was that under the terms of said agreement and of the defendant’s guaranty thereof it had been agreed that the place of trial of any action brought thereon should be in the city and county of San Francisco. The trial court granted the motion for a change of place of trial, and from the order made in that regard the plaintiff prosecutes this appeal.