Emo v. Massae

California Court of Appeal Feb 19, 1962 No. Civ. No. 59Published

Before: Stone

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Holding. The court held that a plaintiff may use affidavits to supplement a common count complaint for the purpose of establishing venue under Code of Civil Procedure section 395, and that trial court findings based on conflicting affidavits will not be disturbed on appeal.

Issues

Whether an affidavit may be filed to supplement a common count in a change of venue proceeding.
Whether a common count is contradictory to an affidavit alleging an express contract where only payment remains to be performed.
Whether an appellate court may reweigh evidence presented via affidavit in a venue motion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“where a complaint is silent as to the details of the elements of a common count, such facts may be shown by affidavit.”

“The general rule thus stated by defendant does not apply if the plaintiff owes no further performance under the contract and nothing remains to be done thereunder except the payment of money by the defendant.”

“it is not the province of this court to reweigh the evidence which the trial court received by way of affidavit.”

STONE, J. This is an appeal by defendant from an order denying his motion for change of venue. Plaintiffs filed a complaint in Madera County alleging defendant’s indebtedness to them in the sum of $6,576.44. The complaint alleges a common count for “work, labor and services performed and monies advanced by plaintiffs to the defendant and for the benefit of the defendant at defendant’s special instance and request.” Defendant filed a motion for change of venue, pursuant to Code of Civil Procedure, section 395, alleging residence in the County of Butte.

Section 395 of the Code of Civil Procedure, insofar as here pertinent, provides that: “ (1) In all other eases, except as in this section otherwise provided, and subject to the power of the court to transfer 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. ...”

Plaintiffs filed a counteraffidavit alleging that they and defendant entered into a contract in Madera County agreeing that a partnership business then in existence would incorporate in Madera County for the purpose of selling, servicing and chartering planes in Madera County. It is alleged that defendant agreed to pay $10,000 for a one-quarter share of the corporate stock to be issued upon completion of the incorporation proceedings. The affidavit also states that in anticipation of defendant’s $10,000 payment, the partnership and defendant took over a 90-day flooring contract on an airplane. The business was incorporated as agreed, but defendant refused to pay $10,000 for one-fourth of the stock, and the bank threatened to foreclose its lien on the plane. Defendant then agreed, in the County of Madera, to refinance the plane through his bank in Chico. Defendant failed to make [475]the payment and, according to the affidavit, plaintiffs were required to pay, and did pay, the balance due on the plane. This payment, made because defendant failed to perform the contract, is alleged to be the amount owing by defendant to plaintiffs.

Emo v. Massae

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