E. M. Cotton Appliance, Inc. v. Felton Aluminum Co.

WHITE, P. J. Plaintiff appeals “from the judgments and final orders . . . entered in the said superior court on the 14th day of November, 1952, in favor of the defendants in said action, and against said plaintiff. ...” The orders and judgments referred to appear to be an order changing the place of trial and transferring the cause, on defendant’s motion, from the Superior Court of Los Angeles County to the Superior Court of Santa Clara County, the latter county being the principal place of business of the defendant corporation ; and a written order signed by the judge of the superior court (subsequent to the entry of a minute order) sustaining a demurrer to the first cause of action of plaintiff’s first amended complaint and granting leave to amend. By the minute order referred to the court also denied plaintiff’s motion to file a second amended and supplemental complaint.

Plaintiff’s first amended complaint contained two causes of action. In the first cause of action designated as one for declaratory relief it was alleged that plaintiff and defendant entered into an oral contract “whereby plaintiff agreed to purchase from defendant, and defendant agreed to manufacture, sell and deliver to plaintiff at Santa Monica, California, 500 aluminum castings to be made from a permanent mold owne'd by the plaintiff,” the castings to be shipped to plaintiff corporation at Santa Monica; that thereafter the parties agreed to reduce the number of castings to be deliv[548]ered; that on November 7, 1951, at Santa Monica, “plaintiff and defendant entered into an accord and satisfaction whereby it was mutually agreed that plaintiff was to accept and pay for in full, 473 castings” at a specified amount “for which total amount plaintiff then and there made and delivered to defendant a check and demanded immediate return of plaintiff’s permanent mold.” That the check was accepted and cashed by defendant.

The only basis for declaratory relief is found in the following allegations of the first cause of action:

“That from and after November 7, 1951, plaintiff has made numerous demands orally and in writing on defendant to return or permit the plaintiff to have picked up for return to plaintiff, f.o.b., Santa Monica, California, the said permanent mold owned by the plaintiff, and of which the plaintiff was and is entitled to possession; but the defendant failed and refused to return, or permit the plaintiff to have picked up for return to the plaintiff, the said permanent mold until July 16, 1952; and the plaintiff is informed and believes that defendant, Felton Aluminum Co., is making some claim against the plaintiff in connection therewith, the exact nature of which is unknown to plaintiff.”