J. G. Ferguson Publishing Co. v. First National Bank

Opinion

HANSON, J. Plaintiff J. G. Ferguson Publishing Company (hereinafter referred to as Ferguson), an Illinois corporation, commenced an action in Los Angeles Superior Court against defendants Universal Programming, Inc. (hereinafter referred to as UPI), a California corporation, and First National Bank of Boston, Inc. (hereinafter referred to as [190]the Bank), a Massachusetts corporation. Ferguson appeals from the trial court’s order dismissing its complaint which alleged against Bank causes of action for interference with contractual relations, conversion and fraud.

The Case

Plaintiff-appellant Ferguson’s complaint against the Bank alleges, in substance, that: UPI and the Bank entered into a factoring arrangement whereby UPI became indebted to Bank in the sum of $1,800,000 as of April 1970; that Ferguson supplied encyclopedias to UPI and in early April 1970 had an account receivable from UPI; that Ferguson requested payment for amounts past due from UPI; that UPI on April 13 mailed to x Ferguson a check in the amount of $30,568.22 which was the amount owing as of March 27, 1970; that the day after the check was mailed UPI stopped payment thereon; 'that one of Bank’s officers or employees caused UPI to stop payment on the-check although UPI’s bank account contained funds sufficient to cover the payment.

After being served with a copy of the complaint, Bank filed a motion for an order to quash service and to dismiss the action because the court lacked venue (12 U.S.C. § 94). Title 12 of the United States Code is entitled Banks and Banking. Section 94 thereof provides: “Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The trial court in its minute order of September 7, 1973, granted a stay of the proceedings as to Bank on the ground that the action could be brought only pursuant to title 12 of the United States Code, section 94 (thus in Boston) and that there was no showing that Bank had waived those rights expressly or by implication. Plaintiff then filed an action (No. 73-3496-F) against the same defendants in federal district court in Boston, Massachusetts on January 25, 1974. At the time the briefs were filed in the present action the case had not been litigated in the Boston court. On February 28, 1974, an order dismissing Bank was issued by the Los Angeles court.