263 P. 550 | Cal. Ct. App. | 1928
This cause is before us upon an appeal by the plaintiffs from an order transferring the place of trial from the county of Sacramento to the city and county of San Francisco. The complaint alleges that the defendants agreed to purchase a certain quantity of beans from the plaintiffs. The title of the action purports to sue the defendants not only as individuals but as doing business under the firm name of Richard J. Murphy. The complaint, however, contains no allegation of the defendants conducting business under that name. The affidavits upon which the place of trial was ordered transferred from the county of Sacramento to the city and county of San Francisco show that the defendant Schumacher was at all times a resident of the county of Sacramento, and that the defendant Murphy was at all times a resident of the city and county of San Francisco. The complaint simply alleges that the defendants agreed to purchase a certain quantity of beans. The affidavits submitted to the trial court upon the motion of the defendants set forth the contract relative to the purchase of the beans in question, which contract is in the words and figures following, to wit:
Clarksburg, Cal. May 29, 1925. —
In consideration of the price herein specified, it is hereby acknowledged by the seller Heringer Brothers that he has this day sold, and that A.C. Schumacher has this day bought for account of Richard J. Murphy, San Francisco, Cal., the beans described as follows:
Per 100 lbs. Net Weight
2400 Sacks each of 100 lbs. net choice
recleaned Pink Beans at $6.00
The first beans threshed on the ranch.
Same to be delivered on or before the ____ day of ____, 1925, in new regulation bean bags of even weight. Weight and beans to be in accordance with standards set by California Bean Dealers Association of California for the current *351 season. Weight to be guaranteed by seller at time of shipment. Delivery to be made f.o.b. Sacramento, Cal.
Signed — HERINGER BROS. By S.F. HERINGER, Seller.
For account of Richard J. Murphy
Buyer By A.C. SCHUMACHER, Agent as Authorized."
The affidavits submitted on the motion for change of place of trial contained all the preliminary matters required to be set forth in such affidavits, and then further state that the defendant A.C. Schumacher was improperly joined as a defendant, and was made a defendant solely for the purpose of having the action tried in the county of Sacramento, where said Schumacher was a resident, which fact, if determined in favor of the moving parties as provided for in section 395 of the Code of Civil Procedure, would entitle the defendant Richard J. Murphy to the order appealed from in this action. [1] While the complaint upon its face apparently states a good cause of action, as against both the defendants as individuals, the law is well settled that upon a motion to change the place of trial, where the question as to whether a defendant has been joined improperly for the purpose of having the cause tried in a particular county, the court has a right to look behind the complaint and see if any defendant has been improperly joined for the purpose of retaining the action in the county where the suit is begun. (Karst v.Seller,
In the case of Hobson v. Hassett,
Further citation of authorities seems to us unnecessary. Nor do we think it necessary to take up and consider cases which hold that parol testimony may be introduced to fix liability upon an undisclosed principal, as the wording of the contract with which we have to do in this case shows who the party to be charged is, and he is the buyer of the beans. Such being the case, it is also unnecessary to take up, consider, and distinguish cases where the wording of the contract leaves it uncertain as to who the party is who is to be charged.
It satisfactorily appearing to us from the record in this case that the place of trial of this action was properly transferred from the county of Sacramento to the city and county of San Francisco, the order of the trial court is affirmed.
Hart, J., and Finch, P.J., concurred.