Mathews Conveyer Co. v. Powell

PETERS, P. J. The Mathews Conveyer Company West .Coast filed a three count complaint in San Mateo County naming O. Frank Towse and several others as defendants. Towse moved for a change of venue to Yolo County, his residence. The motion was denied. Towse appeals.

The first count of the complaint alleges an account stated in San Carlos, San Mateo County; the second alleges an open book account for goods, wares and merchandise furnished to defendants at San Carlos, San Mateo County; and the third simply alleges a written conditional' sales contract for the payment of money. Plaintiff’s affidavit in opposition to the motion for change of venue, which has attached as an exhibit the conditional sales contract, however, avers that the contract provided that all payments called for by the contract were to be made and were made at San Carlos, San Mateo County. It is further averred that pursuant to the provisions of the conditional sales contract involved, it was “to be performed in, and paid in the City of San Carlos, County of San Mateo.” Defendant Towse challenged none of these allegations or averments. His notice of motion for change of venue and his affidavit in support of his motion allege only the fact that he is a resident of Yolo County.

The motion for a change of place of trial was properly denied. While it is the general rule that a contract action, express or implied, is personal in nature, and therefore generally triable in the county of the defendant’s residence, that general rule is subject to certain well-defined exceptions set forth in section 395 of the Code of Civil Procedure. That section, so far as pertinent here, now provides:

“ (1) In all other cases, except as in this section otherwise provided, and subject to the power of the court to transfer [491]actions or proceedings as provided in this title, the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action. . . . When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a- proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary. ...”