Manley v. Wolfe & Co.

24 Iowa 141 | Iowa | 1867

Wright, J.

1. venue : performance, By the affidavit made in support of the motion, it appears that two of the defendants are residents of Linn county, one of them of Wapello, and that their main office is at Ottumwa. It is conceded that this action should have been commenced in one of these counties unless section 2798 of the Bevision authorized it to be brought in Lucas.

This provides that suit may be brought on a contract' in a county where by its terms it is to be performed.

And, therefore, the only question is whether by the terms of the contract, it was to be performed on defendants’ part in Lucas county.

2. _appii0a. tion of míe. The contract says nothing about extra work, nor about money to be paid or articles to be furnished by plaintiff. There is, therefore, no kind of pretense for claiming that defendants were, by the terms of any contract, to pay the $298 in Lucas county. There is not even an express promise, written or verbal, to pay for the same, let alone a place fixed for such payment.

The claim for the $1,000 stands upon but little, if any, better ground. Plaintiff was to be compensated for his damages on account of delay in finishing the grade, but, where ? Certainly there is no more warrant for saying that the compensation was to be made in Lucas than in Wapello county. The rule under the statute is, that actions for a mere money demand shall be brought in the county of defendant’s residence, and they can only be brought in another when the contract, hy its terms, provides for performance therein. The contract, it will be observed, does not in terms obligate defendants to finish the grade. For damages resulting, it is true, they were to pay, but generally, and not in terms, in Lucas county.

3. — venue part. But a small part of plaintiff’s entire demand ($76.87) then could upon any fair construction of the statute, be sued for in Lucas county. This relates to the failure of defendants to deliver the iron and material at the end of the track. There is no claim that part of the demand was triable in Lucas county, but it is insisted that the action was properly brought there as to all. Nor was there, as far as the record discloses, any demand that the case should be retained in that county for a trial as to part, though as to others, defendants were entitled to the change of venue.

The action was upon the one contract, the petition assigning several breaches. It is not pretended that the attention of the court was called specifically to its possible duty to sustain the motion as to part, and overrule it as to the other cause of action. The breach for failure to deliver the material is assigned in the same count with that which claims the $1,000 for the delay in finishing the grade. And though we might concede as. to this fraction of the entire claim (about one-eighteenth) that the action was properly brought, and that the court might, consistently enough, have retained the case as to this part for trial in Lucas county; yet as the court in Wapello county will equally have jurisdiction, as there was no demand that plaintiffs were entitled to have at least this much retained, and as appellant does not here insist upon this view, we unite in the order affirming the ruling of the court below.

For our views of the statute and in support of this conclusion see Hunt v. Bratt (23 Iowa, 171).

Affirmed.