142 Cal. App. 2d 811 | Cal. Ct. App. | 1956
This is an appeal from an order granting a motion for a change of venue from the county of Tehama to the county of Sonoma.
Appellant brought the action in the county of Tehama, seeking recovery of a money judgment against respondent in the sum of $4,569.36. The complaint is in three counts. The first count alleges that defendant became indebted to plaintiff upon an open book account for turkey eggs sold and delivered by plaintiff to defendant. The second count alleges that defendant became indebted to plaintiff upon an express oral contract, whereby he agreed to purchase from plaintiff, and plaintiff agreed to sell to him, from time to time, turkey eggs as ordered. The first count alleges that the obligation therein sued on was incurred in the county of Tehama; the second count alleges that the contract therein sued on was made in the county of Tehama. The complaint is verified. The third cause of action is a common count for money had and received. The same recovery is sought in each of the three counts, and the prayer is for a single judgment in the amount sued for in each count. The third count is silent as to where the alleged indebtedness was - incurred, but it is obvious that each of the three counts is based on the same transactions, that they are not to be considered ■ as different causes of action but as alternative methods of pleading the plaintiff’s single right to recover. (Maselli v. E. H. Appleby & Co., Inc., 117 Cal.App.2d 634, 637 [256 P.2d 618].)
In Dawson v. Goff, 43 Cal.2d 310, 315 [273 P.2d 1], it was stated:
“The obligation is incurred at the time the contract is made and the obligations under it arise and are incurred in the county in which it is made. Under the section*814 [Code Civ. Proc., § 395] the county where the contract is made is deemed to be the county where it is to be performed unless there is a special contract in writing to the contrary. The counties in which an action on the contract may be tried are two, that of defendant’s residence or where the contract is made, unless there is a special contract in writing to the contrary. ’ ’
The affidavits filed by the parties, largely conclusional, as they are, are yet factually in conflict. It is well settled that under such circumstances it is the province of the trial court to resolve the conflict, and the finding of the trial court will not be disturbed on appeal. (Crofts & Anderson v. Johnson, 101 Cal.App.2d 418 [225 P.2d 594]; Hale v. Bohannon, 38 Cal.2d 458 [241 P.2d 4].) Here, the trial court impliedly found the contract not to have been made in Tehama County. Therefore, appellant did not begin her action in the county where the contract was made and respondent was entitled to have the venue changed to the county of his residence.
The judgment is affirmed.
Schottky, J., and MeMurray, J. pro tem.,
Assigned by Chairman of Judicial Council.