Meyer v. Burdett Oxygen Co.

GRIFFIN, P. J. Plaintiff, cross-defendant and respondent, an individual doing business as Bakersfield Welding Supply, brought an action for declaratory relief in Kern County, seeking a declaration of the respective rights and duties of plaintiff and defendant, cross-complainant and appellant, the Burdett Oxygen Company of California, a corporation, in respect to a written contract for the purchase and sale of various industrial gases between defendant corporation and plaintiff herein. A copy of the written contract was attached to the complaint. Defendant answered and filed a cross-complaint seeking reformation of the contract in respect to the paragraphs in issue. Defendant also filed a motion for change of venue to Los Angeles County on the grounds that defendant corporation’s principal place of business was in that county; and that the contract was made, was to be performed in, and that the obligation or liability thereunder arose in Los Angeles County. The two paragraphs of the written agreement are to the effect that products purchased would not be resold by purchaser and upon the violation of said agreement in this respect, the purchaser agreed to pay seller liquidated damages of 75 cents for each 100 cubic feet of gas which purchaser secured from any other source. It is alleged that plaintiff believes defendant asserts all oxygen and gases required by plaintiff for use on plaintiff’s own premises or for resale or retail to other users must be furnished from defendant, and defendant further asserts that if plaintiff purchased gases from any other source for resale to others, plaintiff would become obligated under the liquidated damage provision of the contract. The prayer is that the court declare their respective rights in such a way that plaintiff may purchase such gases from others without such penalty.

In addition, the contract, in substance, provides that defendant company (seller) agrees to sell to plaintiff purchaser certain described gases from August 29, 1956, to August 29,

[521196]1, f.o.b. seller’s plant in Huntington Park, Los Angeles County, California. It is signed:

“Purchaser’s Signature Seller’s Signature

“Bakersfield Welding Supply Co. The Burdett Oxygen Company of California

“By Paul K. Meyer By Charles Gotten

“Title Owner. Accepted by P. Zeedik (Authorized Signature)”