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District Court of Appeal, Third District, California.

GALLO et al. v. BOYLE MFG. CO., Inc.

Civ. 6107

Decided: October 16, 1939

Hawkins & Hawkins & Cardozo, of Modesto, Gibson, Dunn & Crutcher, of Los Angeles, J.W. Hawkins, of Modesto, and Ira C. Powers, of Los Angeles (John Henry Peckham, Jr., of Los Angeles, of counsel), for appellant. Edward T. Taylor, of Modesto, for respondents.

This is an appeal from an order denying defendant's motion for change of venue.

The complaint states a cause of action for damages based upon a warranty in respect to certain metal drums sold by defendant to plaintiffs. It is alleged that the principal place of business of defendant corporation is the city of Los Angeles, and that drums were sold and delivered, f.o.b. Modesto, Stanislaus county, California.

Article 12, section 16 of the Constitution of California provides: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated subject to the power of the court to change the place of trial as in other cases.”

It is the contention of appellant that the contract involved does not come under any of the foregoing provisions. Respondent contends that there was sufficient evidence to justify the trial court in finding that the contract was to be performed in Stanislaus county; hence, the trial court properly refused to change the venue.

It is the rule that the question of where the contract was to be performed is one of fact, and the determination by the trial court of that question will not be disturbed if there is any substantial evidence in the record to support it, and all conflicts must be resolved in favor of the prevailing party. If, therefore, the facts upon which the present motion was heard and determined reasonably support the inference that the contract was to be performed in Stanislaus county, the order must be affirmed. Parker Co., Inc., v. Exeter Refining Co., 26 Cal.App.2d 610, 79 P.2d 1114.

The motion was heard upon the verified complaint and affidavits introduced by both parties. The complaint alleges that defendant sold and delivered the drums to plaintiffs f.o.b. Modesto, California. The purchase order in evidence contains the following language: “Please deliver to us via Santa Fe, f.o.b. Modesto, the following items *.” As delivery of an article sold is an essential part of the contract, and as the contract called for delivery in Stanislaus county, it would seem that the foregoing is ample evidence upon which the trial court could make a finding that the contract was to be performed in that county. “It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale.” Civ.Code, sec. 1761.

Appellant points out other facts which it contends support the theory that delivery was to be made in Alameda county. We have examined the record and have come to the conclusion that such facts, at the most, create a conflict in the evidence. To entitle defendant to prevail, we would have to hold that the facts adduced by appellant are conclusive in character. This we are unable to do. The purchased order states plainly and without ambiguity that the drums were to be delivered in Stanislaus county. Whether or not there was a mistake in stating such terms was a matter entirely committed to the trial court.

The order is affirmed.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.

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