262 P. 452 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *303 This is an appeal from an order granting a change of venue from Alameda County to Los Angeles, which is the place of residence of the defendant corporation.
Both appellant and respondent are California corporations. The residence and principal place of business of the former party is at Oakland, Alameda County, California, and the latter is at the city of Los Angeles. A written agreement between the parties purports to have been executed in Alameda County November 13, 1923, the introductory paragraph of which reads: "Agreement made this 13th day of November, 1923, in the city of Oakland, County of Alameda, State of California, etc." By the terms of this agreement the respondent corporation appointed appellant corporation "exclusive sales agent for the sales of the Majestic, California, and Universal Automatic Water Heaters," for all the northern counties of California, for the term of five years. The contract provided that appellant should purchase from respondent not less than 1,200 heaters for the first year, 2,500 per year for two succeeding years and 3,600 each year thereafter, at specified prices payable f.o.b. on cars at Los Angeles. Respondent reserved the right to cancel the contract for failure to purchase the specified number of heaters.
April 9, 1925, appellant filed a complaint in Alameda County, setting forth a copy of the contract, and alleging that the appellant's principal place of business, as well as the place where the contract was to be performed, and where it was violated, was at Oakland, Alameda County; that respondent was engaged in manufacturing said heaters at the city of Los Angeles; that appellant had organized his *304 territory, employed salesmen and advertised said water heaters throughout his district, and had at all times performed the conditions of said contract on its part, but that the respondent had broken the contract by refusal to sell or ship said heaters pursuant to their agreement, and by selling large numbers of said heaters to persons residing in said territory, other than appellant, to its damage in the sum of $8,000.
May 9, 1925, respondent filed in the superior court of Alameda County, in due form, its motion for change of the place of trial to the city and county of Los Angeles, which motion was supported by proper affidavits alleging that the residence and principal place of business of respondent, as well as the place where said heaters were manufactured, was, at all times, at Los Angeles; that said contract was in fact drafted at Oakland on the date which it bears, but that it was then turned over to Wm. B. Bastian, the president of said corporation, for approval, and was taken by him to Los Angeles, where it was finally accepted, approved, executed on the part of respondent, and then mailed to appellant from Los Angeles on November 19, 1923; that appellant violated this contract in that during the first year of its term, appellant failed to order or purchase more than 981 heaters, and for the first four months of the succeeding year, it failed to order more than 200 heaters; that on March 18, 1925, respondent notified appellant of said breach of contract, and thereupon canceled the agreement.
Appellant objected to that part of respondent's affidavit which contradicted the caption of the agreement reciting that the contract was made and executed at Oakland, October 13, 1923, on the ground that it varied the terms of a written instrument. Appellant also contends that the evidence shows that the breach of contract occurred in Alameda County, and not in Los Angeles.
The court may change the place of the trial of a cause when the county designated in the complaint is not the proper one. (Code Civ. Proc., sec. 397.) The constitution of California, article XII, section 16, provides: "A corporation or association may be sued in the county where the contract is made, or is to be performed, or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation *305 is situated, subject to the power of the court to change the place of trial as in other cases."
[1] The affidavit of Wm. B. Bastian, president of the respondent corporation, is uncontradicted with respect to its residence and principal place of business, and is therefore conclusive in that regard. The time and place for the consummation of a contract is the place where, and the time when, the last act necessary to complete its validity, is performed. (Fitzhugh v. University Realty Co.,
The cases relied upon by appellant in support of its contention that the affidavit of respondent was incompetent to dispute the time and place designated in the contract as the location of its execution have reference only to matters essential to the determination of the liabilities of the contracting parties in the respective cases. Knoch v. Haizlip,
[4] The uncontradicted evidence in the instant case shows that the breach of contract, chiefly relied upon, occurred in Los Angeles County, for that is where the water heaters were manufactured and sold, which is the subject matter of the contract sued upon. The allegations of the *308
complaint contain nothing to the contrary. The case of Byrum v.Stockton C.H. A.W.,
It is true that the complaint in this case charges defendant with a breach of contract not only in refusing to sell and ship to plaintiff water heaters, when ordered pursuant to said contract, but also accuses defendant with alleged sales of water heaters to persons residing in said district in northern California, other than appellant, and of appointing other agents in said district who were authorized to sell said heaters. But all these alleged acts, if unwarranted, constituted a violation of the contract which was to be performed at Los Angeles. Moreover, the complaint is extremely vague and indefinite as to these alleged violations of the contract. It is averred that these sales of heaters *309 were made at times "the exact dates whereof plaintiff does not now remember." Neither the names of individuals to whom heaters are alleged to have been sold, or who are alleged to have been appointed agents for respondent, are mentioned, nor is the time of these alleged violations of contract stated. On the contrary, the affidavit of Mr. Bastian, in behalf of respondent, alleges that all sales of said heaters were made f.o.b. at Los Angeles; that for failure on the part of appellant to purchase said heaters according to the terms of the contract, the respondent rescinded said contract in writing on March 18, 1925, and notified appellant that it refused to ship further heaters under said contract. The evident inference from the affidavits on file is that whatever sales or appointment of agents respondent made, if any, in conflict with the contract involved in this case, were made after its purported rescission of contract on March 18, 1925. There is no evidence to the contrary. Moreover, this is not an action for damages for the sale of heaters in Northern California to individuals other than appellant, but rather an action for damages for breach of a specific contract, the performance of which was at Los Angeles, and not elsewhere.
[5] While it is true that a corporation moving for a change of the place of trial to the location of its principal place of business sustains the burden of showing that the contract upon which the action was instituted was neither executed, required to be performed, nor violated at the place where the action was commenced (Lakeside Ditch Co. v. Packwood Canal Co.,
From the evidence in this case it satisfactorily appears that the residence and principal place of business of the defendant was at Los Angeles; the contract involved was made and was to be performed there, and not elsewhere; all sales and payments for heaters were made at this place; the breach of contract, on the part of respondent, if any, followed the rescission of the agreement which also occurred at this place; the situs of the basis for the acts complained of was at Los Angeles, and not in Alameda County.
For the foregoing reasons the order is affirmed.
Sturtevant, J., and Koford, P.J., concurred.