239 P. 63 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *573 An action to recover the sum of five thousand dollars alleged to be due upon an assigned claim for attorney's fees. All defendants, excepting Robert Johnston, joined in a motion for change of place of trial from the city and county of San Francisco to the county of Shasta, upon the ground that they were residents of the latter county and that the remaining defendant Robert Johnston had been improperly joined as a defendant solely for the purpose of having the action tried in the jurisdiction wherein Johnston resided. In this connection it is averred by the moving defendants that no cause of action ever existed in favor of plaintiff's assignors as against their codefendant Johnston and that no judgment could be rendered against him in said action. The evidence offered in support of said motion consisted of certain affidavits and of the testimony of the defendant John W. Benton, given in the form of a deposition. The motion was granted, and two separate appeals were taken and are being separately presented, one by plaintiff E.R. Johnson and the other by the defendant Robert Johnston.
It appears that on April 6, 1923, the defendants Kate, Harry L. and John W. Benton entered into a written contract *574 with the firm of Johnston Criteser, real estate brokers, of which firm the said defendant Robert Johnston was a partner, for the purpose of effecting a sale of certain timber lands in Shasta County in which the Bentons were interested. Suit was afterward brought on said contract in the superior court of the city and county of San Francisco, by said Robert Johnston as assignee, against the parties to that contract to recover real estate commissions. The place of trial of that action was, upon motion of the defendants, changed to said county of Shasta, upon the ground of residence of said defendants. The present action was commenced to recover fees claimed to be due for legal services rendered in connection with negotiations carried on for the sale of said timber lands, under said real estate contract. Plaintiff's complaint is in two counts; one is based upon an express agreement to pay the sum of five thousand dollars and the other upon a quantum meruit. In both counts defendant Johnston is sued, not as a principal, but as the "agent and employee" of the Bentons, the complaint in this respect alleging, after setting forth that plaintiff's assignors are practicing attorneys at law, and that the Bentons, as heirs at law of T.H. Benton, deceased, are the owners of said tract of land, "That Robert Johnston is a real estate broker actively engaged in such business in the City and County of San Francisco, State of California, and at all the times herein mentioned was the agentand employee of the other defendants above named for the purposeof selling and disposing of the above described real estate." (Italics ours.)
[1] The evidence adduced at the hearing of the motion shows without conflict that plaintiff's assignors knew that Johnston had no personal interest in the title to said property, and was acting merely in the capacity of an agent for the sale thereof; accordingly, plaintiff's assignors dealt with and treated him as an agent and not as a principal, and, as already pointed out, he was sued only as an agent. That being so, he could not, under well-settled law, be charged with a personal liability (Tevis
v. Savage,
The defendant Johnston, in support of his appeal, does not deny the claim advanced by his coappellants that as agent he is not liable, or that he was improperly joined as a party defendant; but he contends that inasmuch as he can be formally dismissed upon that ground only by an order sustaining demurrer to the complaint, he is entitled to have that question passed upon in the jurisdiction of his residence. [5] In answer thereto it is sufficient to say that the course adopted by respondents Benton in demanding a change of venue has been approved in several cases, which hold that the real defendants may show, by affidavits or otherwise, that plaintiff has actually no cause of action against one of the parties who was made nominally a defendant simply for the fraudulent purpose of depriving the real defendants of their right to have the action tried in the place of their residence (Sourbis v. Rhoads,
[6] The moving papers of the respondents Benton were legally sufficient for the purposes intended, and we are of the opinion that the evidence, of which the deposition of John W. Benton must be considered a part (Henderson v. Cohen,
The order appealed from is affirmed.
Tyler, P.J., and Cashin, J., concurred. *577