Wheeler v. Moschetti

California Court of Appeal Feb 3, 1961 No. Civ. No. 10014Published

Before: Warne

AI Brief

AI-generated · verify before citing

Holding. The court held that the appellants were entitled to a change of venue to the county of their residence because the respondent failed to provide evidence of a written contract requiring performance in the county where the action was filed.

Issues

Whether the trial court erred in denying a motion for change of venue from Yuba County to San Francisco when the underlying contract was oral and made in San Francisco.

Disposition. reversed

Quotations verified verbatim against the opinion

“The general rule is that a defendant is entitled to have actions tried in the county of his residence.”

“In the absence of such “ ‘a special contract in writing to the contrary the county in which the obligation is incurred is the venue of an action arising out of it.’ ””

“In the instant case the allegation in appellants’ affidavit that the oral contract was made in San Francisco stands uncontradicted.”

WARNE, J. pro tem.* This is an appeal from an order denying appellants’ motion for a change of venue from the county of Yuba to the city and county of San Francisco.

The complaint is in the form of a common count alleging that appellants were indebted to the respondent in the sum of $1,225.22 and had promised to pay that sum in Yuba County, but that the appellants had failed to pay the obligation as promised.

Appellant E. L. Moschetti filed an affidavit in support of the motion for change of venue which deposes and says: That the parties made two written contracts in Yuba County by the terms of which appellants sold and respondent purchased certain fixtures which were to be delivered in Yuba County; that when the time for delivery arrived respondent changed his plans and no longer desired the equipment; that about three weeks subsequent to the sale the respondent entered into an oral agreement with the appellants; that this oral agreement was entered into in San Francisco and was to the effect that appellant sell the fixtures for respondent’s account on a commission basis; that all the fixtures were thus sold in Oakland, California, or are now in the possession of the respondent, with the single exception of one piece of equipment which was destroyed by fire, but not through the appellants’ fault or negligence ; that appellants tendered by check the amount due on the account which respondent has neither returned nor cashed. The account itself is alleged to have been stated to the respondent in a letter accompanying the check; that there were no other transactions involved between the parties and that at the [829]time of the oral agreement made in San Francisco there was no understanding as to where the appellants were to sell the equipment. Finally, the affiant, E. L. Moschetti, declared that he was a resident of San Francisco at the time of the commencement of the action and continued to so reside to the time the affidavit was filed. It is also stated that the affiant had full authority from his coappellant, William Moschetti, to make the affidavit in behalf of both and that no other persons are interested in the Moschetti Refrigeration Company. The consent of William Moschetti to the transfer of the action was attached to the affidavit.

No affidavit was filed by the respondent in opposition to the motion for change of venue.

As stated in Diepenbrock v. Auslen, 185 Cal.App.2d 747, 750 [8 Cal.Rptr. 659] :

Wheeler v. Moschetti

AI Brief

More from California Court of Appeal

Related research

AI Brief