Defendant Fred Bergin appeals from an order denying his motion for a change of venue from Los Angeles County to Santa Barbara County.
The verified complaint was filed in Los Angeles Oounty on April 7, 1961. (New section 400 of the Code of Civil Procedure, providing for remedy by mandamus, had not been enacted when this appeal was taken.)
In the first cause of action it was alleged that defendant Fred Bergin is now and at times herein mentioned was doing business as Bergin Skate Co., and Central Skate Co.; that within two years last past, at Lynwood, California, plaintiff sold and delivered goods, wares, and merchandise of the reasonable value of $17,179.09 to defendants, for which they agreed to pay; there is now due and unpaid, on said amount, the sum of $10,556.28.
The second cause of action alleged that within four years past, an account was stated by and between plaintiffs and defendants, whereby it was agreed that defendants were indebted to plaintiff in the sum of $17,179.09; there is now due and unpaid, on said amount, the sum of $10,556.28.
The third cause of action alleged that within four years last past, plaintiff furnished to defendants at their special instanoe and request, upon an open book account, goods, wares, and merchandise of the reasonable value of $17,179.09; there is now due and unpaid, on said amount, the sum of $10,556.28.
Notice of motion for change of venue was filed on June 22, 1961. 1 That notice stated that the motion would be made upon the ground that the proper county for the trial of said action is the county in which the defendant Fred Bergin resides, to wit: Santa Barbara County.
One declaration of Fred Bergin (filed June 22, 1961), in *564 support of the motion, stated: He is a resident of Santa Barbara County, and has resided in said county for the past 10 months. He served the summons in Santa Barbara County (presumably this was intended to state that he was served with summons in that county). He denies that plaintiff ever sold or delivered goods, wares, or merchandise to him at Lynwood, California, or that he ever entered into any type of contract, implied or otherwise, with plaintiff in Los Angeles County.
Also on June 22, 1961, defendant Fred Bergin filed an answer in which he denied the material allegations of the complaint.
Another declaration of Fred Bergin (filed July 13, 1961), in support of the motion, stated: That to the best of his knowledge he is the only defendant named in the complaint who has been served with a summons and complaint; that the other defendant named in the suit, George Bergin, is not now and never has been a resident of Los Angeles County, and is presently a resident of the State of Michigan; that he (declarant) has never stated an account for any amount of money with the plaintiff in Los Angeles County.
On July 18, 1961, Fred Bergin filed a declaration of merits.
Mr. Ball, vice-president of plaintiff corporation, made a declaration in opposition to the motion, wherein he stated: The first cause of action was founded, in part, upon a written agreement of October 2, 1959, a copy of which is attached to this declaration. 2 That agreement and all other agreements, oral or written, between the parties upon the obligation upon which the action is founded, were entered into, consummated, concluded to be performed, and made payable in Los Angeles County, under the following circumstances: The agreement originated in conversation in Lynwood, Los Angeles County, California, about January 15, 1959; the conversations were between George Bergin and John Wintz, who is an officer of plaintiff, and were held in the presence of Mr. Oldfield and Mr. Brown; later there were conversations between George *565 Bergin and John Wintz in Chicago; the letter of October 2, 1959, was prepared by plaintiff and was sent to Central Skate Company in Tpsilanti, Michigan, to be signed by George Bergin and Fred Bergin; the letter was not signed by plaintiff when it was sent; the letter was signed by the Bergins and returned to plaintiff, and then was executed by Ball in Lynwood; since the last act to complete the contract was performed in Los Angeles County, the contract was made in that county, which is the proper place for the trial.
Appellant concedes that the first and third causes of action (for agreed price of goods; and upon open book account) are triable in Los Angeles County. He contends that the court erred in denying his motion, for the reason that the second cause of action (account stated) was triable in Santa Barbara County, where he resides.
Where a defendant is entitled to a change of venue as to one contractual cause of action, a motion for a change of venue should be granted even though there are other causes of action as to which he is not entitled to a transfer.
(Ward Mfg. Co.
v.
Miley,
The order is affirmed.
Fourt, J., and Lillie, J., concurred.
Notes
The clerk’s transcript does not include .the notice of motion, or the first declaration of Fred Bergin. There are references in the briefs to a supplemental clerk’s transcript, but such transcript is not on file herein. This court has obtained the original file of the superior court.
The letter was as follows: "October 2, 1959 Central Skate Company . . . Ypsilanti, Michigan. Consigned Stock Agreement. This agreement made between Sure-Grip Skate Wheel Co., Inc., and George Bergin, Fred Bergin DBA Central Skate Company. Sure-Grip Skate Wheel Co., Inc., agrees to ship their products to Central Skate Company on a consigned stock basis. Consigned stock not to exceed an amount of $15,000.00 based on regular distributors discounts. Excess amounts over the $15,000.00 limit will be paid for on a cash basis. It is also agreed that after six months of operation by Central Skate Company effort will then be made to arrange the paying off of the consigned stock. ’ ’