Remington Sewing Machine Co. v. Cole
Before: Ross, Sharpstein
Synopsis
Appeal by the defendants, Joseph H. Cole and George M. Cole, from an order of the Superior Court of the City and County of San Francisco, denying their motion for a change of the place of trial. Edmonds, J.
Action on a bond. The action was commenced September 29, 1877, in the Fifteenth District Court. The complaint is as follows:
The Remington Sewing Machine Company, hereinafter styled plaintiff, complains of Joseph H. Cole, George N. Cole, O. H. Jewell, and A. Showers, defendants herein, and for cause of action alleges:
1. That plaintiff is, and at all the times hereinafter mentioned was, a corporation organized under the laws of the State of Mew York, and is and was engaged in the manufacture and sale of the Remington sewing machines, so called.
2. That on or about the first day of January, A. D. 1875, the defendants, A. Showers, 0. H. Jewell, and George M. Cole, entered into and formed a copartnership under the style of Showers, Jewell & Cole, for the purpose of buying and selling the aforesaid Remington sewing machines in-the State of California and elsewhere.
3. That after the formation of such copartnership the plaintiff entered into an agreement with the said Showers, Jewell & Cole, as partners as aforesaid, whereby the plaintiff agreed among other things to sell to said firm only in the States of California and Oregon its said Remington sewing machines, at certain agreed rates, and upon certain conditions, and the said firm of Showers, Jewell & Cole did agree with the plaintiff among other things to maintain and keep open a store in San Francisco, California, for the sale of said machines, and to pay the plaintiff certain agreed rates for all such machines sold and delivered to them by the plaintiff.
4. That as a condition precedent to the aforesaid agreement between plaintiff and the said firm of Showers, Jewell & Cole, the plaintiff did require and exact from each and every member of said firm a bond in the sum of ten thousand dollars, with good and sufficient surety, and conditioned that if said Showers, Jewell & Cole should from time to time, and at all times, as the same should become due and payable, pay and satisfy all dues, demands, or any balances, which, under their aforesaid agreement, might become due to the plaintiff, or in default thereof, that said member would pay to the plaintiff his one third part or proportion of any such indebtedness, then the obligation to be void, otherwise in full force and effect.
5. That pursuant to such condition the said defendant, George N. Cole, as one of the-said firm of Showers, Jewell & Cole, did, on the tenth day of February, A. D. 1875, make, execute, and deliver to plaintiff his certain bond in the sum of ten thousand dollars, with the defendant, Joseph H. Cole, as surety thereon, and of which the following is a copy, to wit: “Know all men by these presents, that I, George N. Cole, of Stockton, in California, as principal, and Joseph H. Cole, of O’Neal Township, California, as surety, are firmly bound and obliged unto E. Remington & Sons, of Illion, New York, a firm duly established and doing business under said name, in the full and just sum of ten thousand dollars, the which sum, well and truly to be paid to them, said E. Remington & Sons, or the survivor or survivors of them or their assigns, or representatives of them, we jointly and severally bind and oblige ourselves, and our several heirs, representatives, and assigns, firmly by these presents. Sealed with our seals, and dated this tenth day of February, A. D. 1875. The condition of this obligation is such that, whereas, on the first day of January, 1875, the said George N. Cole became an equal copartner with A. Showers and O. H. Jewell in the business of selling and dealing in the sale and disposition of the Remington sewing machines, a machine, the patent of which is owned by E. Remington & Sons, and transacting .said business under the firm name of Showers, Jewell & Cole, which said firm have entered into-an arrangement or agreement to and with said E. Remington & Sons for the supplying of said sewing machines to said firm, for the purpose of sale and the carrying on of their said business. Now, therefore, if the said Showers, Jewell & Cole shall from time to time, and at all times, as the same shall become due and payable, pay and satisfy all dues, demands, or any balances, which, under their said arrangement, agreement, or understanding, as to the terms of dealing, may be or become due, owing, and payable to said E. Remington & Sons for supplies and machines as aforesaid, or in default thereof, the said George N. Cole shall well and truly pay or cause to be paid or settled to the satisfaction of said E. Remington & Sons his one third part or proportion of any such due, indebtedness, or balance, then this obligation shall be void and of no effect, otherwise be and remain in full force and virtue. Sealed with our seals, and delivered in presence of William Graham. George N. Cole, J. H. Cole.”
Opinion — Ross
Ross, J.: If the complaint counted alone on the bond executed by Joseph H. and George N. Cole, there was no cause of action stated against Jewell or Showers, and they were improperly made parties. In that view, the Coles were entitled to a change of the place of trial, and their motion in that behalf made in 1877, and denied August 30,1878, ought to have been granted, notwithstanding Jewell and Showers - then remained parties of record. From the order made refusing a change of venue the parties aggrieved were entitled to appeal, and that was their remedy. If, on the other hand, the complaint contained a cause of action against Jewell and Showers, the order made August 30, 1878, was rightly made, for they did not join in the motion for a change of the place of trial, but on the contrary,-fileda demurrer, without objection,on that ground. If there was a cause of action stated against them, they had as much right to have it tried in the City and County of San Francisco, where the action was commenced, as their co-defendants had to have it tried in the county of their residence. In either event, we do not perceive how the subsequent dismissal of the action as against Jewell and Showers could operate to confer on the other defendants the right contended for by them. That right is to he determined by the condition of things existing at the time the parties claiming it first appeared in the action.
Order affirmed.
[319]McKinstry and McKee, JJ., and Morrison, C. J., concurred.
Dissent — Sharpstein
Sharpstein, J., dissenting: I dissent. This is one of the actions which the Code declares “ must he tried in the county in which the defendants or some of them reside at the commencement of the action.” (C. C. P. 895.) Before the action was dismissed as to any of the defendants, some of them resided in San Francisco and some of them in San Joaquin County. After the dismissal of the action as to some of them, the remaining ones resided in San Joaquin. They had a right to have the action tried in that county, and if they did not waive that right, the Court erred in denying their application to have the place of trial changed from San Francisco to San Joaquin. The right might have been waived by appearing and answering or demurring without filing an affidavit of merits and demanding “ in writing that the trial be had in the proper county.” (Id. 396.)
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