Groobman v. Pfeiffer

PLUMMER, J. This cause is before us upon an appeal by the plaintiff from an order of the trial court denying plaintiff’s petition for a change of place of trial, based upon the third subdivision of section 397 of the Code of Civil Procedure. The action was originally instituted in the county of Los Angeles, and thereafter, upon the application of the defendant, transferred to the county of Butte, the residence of the defendant.

The complaint is in three counts, only one of which we need consider. The first count of the amended complaint alleges that in the year 1932, an agreement was made between the plaintiff and the defendant whereby the defendant agreed to purchase walnuts in the Butte County district, of such grade and quality as the plaintiff should instruct the defendant to buy,- that thereafter the defendant purchased and delivered to the plaintiff four carloads of walnuts during the season of 1932, representing that said walnuts were of good quality, and of such grade as the plaintiff had ordered; that when the plaintiff received the„first carload of walnuts he notified the defendant that the nuts were not of the grade and quality ordered, and directed the defendant to ship no more walnuts of such grade and quality ; but that the defendant disregarding the instructions, proceeded to ship the other cars referred to; that when the ears were received at the packing house belonging to the plaintiff in the county of Los Angeles, the plaintiff notified the defendant of the alleged inferior quality of the walnuts; that the plaintiffs refused to accept the walnuts; that the defendant called upon the plaintiff in the county of Los Angeles, and that an agreement was entered into relative to the disposal of the walnuts, whereby the respective parties were to equally share in the losses or in the profits, if any were received in the disposal of the walnuts.

It is alleged also that the plaintiff paid to the defendant the sum of $9,938.27; that the plaintiff succeeded in selling the walnuts for the sum of $7,272.44, leaving a deficit in the sum of $2,665.83. Other counts in the complaint allege other items which do not need to be considered herein. It is [12]further alleged in the complaint that the walnuts were of an inferior quality, etc.

The answer of the defendant denies the inferior quality of the walnuts; denies the agreement as set out in the plaintiff’s complaint; and alleges that the plaintiff agreed to, and authorized the defendant to purchase walnuts at a certain specified price per pound, and allow the defendant a commission of one-half cent a pound for the walnuts purchased by him as agent for the plaintiff; and that the walnuts purchased by him were of the grade and quality which he was authorized to purchase.