G. W. McNear, Inc. v. Geophysical Service, Inc.

BARNARD, P. J. Geophysical Service, Inc., appeals from an order denying its motion to transfer this matter to the Superior Court of Los Angeles County. The proceeding was brought by G. W. McNear, Inc., to compel the appointment [663]of an arbitrator and to require that an arbitration proceed in accordance with the provisions of a written contract. The respondent is a California corporation with principal offices in San Francisco. The appellant is a foreign corporation authorized to do business in California, with its principal California office in Los Angeles.

On September 2, 1947, these parties executed an agreement which provided that the appellant might do certain geological and geophysical work on a tract of land in Fresno County owned by the respondent, on condition that it would pay for any damage done to existing water wells on the property. The work was to be begun within two weeks and completed within 60 days thereafter. It was agreed that “Food Machinery Corporation” was to inspect the wells before and after the work, and make a report with its estimate of the amount of damage, if any. This report was to be conclusive as to the fact of damage but not as to the amount. It was then provided that in the event damage was reported, and if the parties could not agree as to the amount of compensation, each of the parties should appoint an arbitrator, the two so appointed should forthwith select a third, and the decision of the majority should be binding. Attached to the contract was an agreement to make the inspections and furnish the reports mentioned, which was signed “Food Machinery Corporation by E. H. Hansen.”

The petition herein set forth a copy of this contract and alleged that Food Machinery Corporation had determined on December 19, 1947, that damage from this work had resulted to a certain water well on this land; that the parties were unable to agree as to the amount of compensation therefor; that the petitioner had appointed a certain person as an arbitrator and had demanded, in accordance with the contract, that the appellant appoint an arbitrator; and that the appellant has refused so to do or to proceed with the arbitration in the manner agreed upon.

The appellant filed a demurrer and moved for an order transferring the proceeding to Los Angeles County. Its affidavit in support of the motion alleged that its principal office in California is in Los Angeles and that it has not maintained an office in the county of Fresno; that the petitioner’s principal office is in San Francisco; and that the agreement set forth in the petition was signed in September, 1947, but was not entered into in Fresno County. It was then alleged that