Duran v. Lynn

SHEPARD, J. Plaintiffs filed this action in Riverside County and alleged the delivery to defendants of farm produce from plaintiffs’ ranch in Riverside County for resale by defendants as commission merchants for the account of plaintiffs, and that there is a balance of unpaid indebtedness therefor due to plaintiffs.

The complaint also alleges the execution of a crop mortgage and a deed of trust on said lands to secure advances from defendants to plaintiffs for financing the growing and harvesting of said produce; that such advances have all been repaid by accumulation of credit to plaintiffs from such sales; that defendants refuse to clear plaintiffs’ title from the cloud of the crop mortgage and deed of trust, and pray for compulsory satisfaction of the crop mortgage; reconveyance of the deed of trust; injunction pendente lite; damages; and judgment for unpaid money due from defendants to plaintiffs.

Defendants appeared, filed a demurrer, an affidavit of merits and of residence in Los Angeles County, and a notice of motion for change of venue to Los Angeles County. Plaintiffs filed a eounteraffidavit to the effect that the agreement, the deed of trust, and the promissory note evidencing the indebtedness secured by it and the chattel mortgage, were all made, executed, entered into and delivered in Riverside County, and payment for all produce was to be made in Riverside County. The defendants’ allegations of residence in Los Angeles County and the plaintiffs’ allegations that the contract was made, executed and delivered, and to be performed in Riverside County are uncontradicted.

Upon presentation, the motion for change of venue was denied and defendants appeal from that order.

Code of Civil Procedure, section 395, provides in part as follows:

"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.”

On a motion for change of venue, if there be any conflict as to facts, the doubt must be resolved in favor of the prevailing party since decisions on questions of fact are for the [451]