65 Colo. 140 | Colo. | 1918
delivered the opinion of the court.
July 9, 1914, the Maxwell-Chamberlin Motor Company, a corporation of Denver, Colorado, plaintiff in error, entered into a written contract with Howard I. Piatt, of Grand Junction, Mesa County, Colorado, defendant in error, by which the Motor Company agrees to sell and deliver' to Piatt, at Denver, Colorado, motor cars and trucks manufactured by the Thomas B. Jeffery Company of Kenosha, Wisconsin, for re-sale within Montrose, Delta, Mesa, Garfield and Rio Blanco Counties, Colorado, and grants him the exclusive right to sell them within such territory, to which the right is specifically confined. The contract provides Piatt shall deposit $300.00 as a guaranty with the Motor Company; that the deposit shall be refunded in cash at the expiration of the contract, if at that time the dealer (Piatt) shall have taken and paid for all cars ordered by him, and faithfully discharged all his obligations thereunder; that the jobber (Motor Company) shall have the option of applying any or all of the deposit on the payment
The complaint, which contains a double statement of the cause of action, alleges that Piatt resides and is doing business in Mesa County, under the trade name of the Western Slope Auto Company, and that the contract was to be performed there; that at the time he executed it, he deposited $300.00 in cash with defendant, which it accepted and has ever since retained; that he took and paid for all cars ordered under the contract and duly performed all the obligations and conditions thereof on his part stipulated to be performed;, that defendant violated its terms by failing to furnish a car ordered on July 7, 1915, and he thereupon rescinded the contract in writing and demanded the return of the $300.00 deposit, which defendant neglected, failed and refused to do. There is another count for the same item or transaction, which is laid for money had and received, but it is the same cause of action and for the same recovery as the first count. It states that defendant re
Service of summons was made in Denver. In apt time defendant filed a motion for change of venue to the County Court of Denver County, upon the grounds that its principal office and place of business and only place of business is the City and County of Denver, and not elsewhere; that it resides in, and is a resident of, the City and County of Denver, which is the proper county for the trial of the case; that the contract is to be performed on its part iii Denver, and not elsewhere; that it executed the contract in Denver, after its execution by plaintiff; and that the County Court of Mesa County is without further jurisdiction of the case, except to enter an order transferring it to the proper county for trial.
The motion was supported by the affidavit of the president of the company, upon whom summons was served, which states that he executed the contract on behalf of the company in Denver, after it had been executed by plaintiff; that all things to be done by defendant were to be performed, under the terms of the contract, in Denver; that the $300.00 was deposited with, and is held by defendant, in Denver; that defendant is a corporation organized under the laws of Colorado, and its articles of incorporation designate Denver as its principal place of business, and the place where its principal office is kept; that it never kept nor maintained an office anywhere except at Denver, and has at all times resided in and been a resident of Denver, and that service was had upon it in that city. This affidavit was not controverted, and no other evidence was taken on the motion.
The motion for a change of venue was denied, defendant elected to stand upon the motion and refusing to further plead, default was entered and judgment taken against it. Motion for a new trial was filed upon the ground that the court was without jurisdiction of the cause after the filing
The assignments of error challenge the ruling of the court in denying the motion for a change of venue, in attempting to exercise jurisdiction after filing the motion, overruling the motion for a new trial and giving and entering judgment.
Opinion.
As a general rule, under our code, personal actions are triable in the county of the defendant’s residence at the commencement of the suit. Code, S. L. 1887, p. 102, § 27; Brewer v. Gordon, 27 Colo. 111, 59 Pac. 404, 83 Am. St. Rep. 45; Woods Co. v. Royston, 46 Colo. 191, 103 Pac. 291; Kruschke v. Quatsoe, 49 Colo. 312-316, 112 Pac. 769; Gould v. Mathes, 55 Colo. 384, 135 Pac. 780; Price v. Lucky Co., 56 Colo. 163, 136 Pac. 1021; Smith v. People, 2 Colo. App. 99, 29 Pac. 924; Pearse v. Bordeleau, 3 Colo. App. 351, 33 Pac. 140; D. & R. G. Co. v. Cahill, 8 Colo. App. 158, 45 Pac. 285. To this general rule there are a number of exceptions, one being that actions upon contract may be tried in the county in which the contract was to be performed.
It appears without contradiction that defendant resided in Denver, and not elsewhere; that its principal office and place of business was kept in Denver; that it never maintained an office or place of business elsewhere; that service of process was made on it in Denver; and that the contract was executed by defendant in Denver subsequent to its execution by plaintiff. So under the code and authorities cited, the case is triable in Denver, the county of defendant’s residence, and where it was served with summons, unless the action is brought upon a contract which defendant was to perform in Mesa County, bringing it within the exception.
The complaint alleges that the contract by its terms was to be performed in Mesa County, where plaintiff at the time was doing business under the trade name of “Western
But it is claimed that the part of the contract agreeing to refund the deposit, upon which the action is brought, was to be performed in Mesa County. There is no place designated in the contract where the deposit is to be refunded, and the contract mentions nothing to be performed by defendant in Mesa County. The affidavit shows that the money was deposited in Denver and is held there. In the absence of any agreement that the deposit was to be refunded in Mesa County, it follows as a matter of course, under the general rule, that defendant is entitled to have the suit for its recovery tried in the county of his residence.
It is doubtful whether this action is brought upon the contract. We are inclined to think it is for the recovery of a money demand growing out of the contract, and if so,
Judgment reversed, with directions to the lower court to change the venue to the City and County of Denver, where defendant will be allowed to plead as it may be advised.
Reversed and remanded.
Decision en banc.