APPEAL from a judgment of the Superior Court of the county of Graham. Lee N. Stratton, Judge. Judgment reversed and case remanded, with instructions.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfield, for Appellant.
Mr. Benjamin Blake and Messrs. Mathews & Bilby, for Appellees.
[38 Ariz. 182] LOCKWOOD, J.
J. W. Mattice and W. B. Mattice, doing business under the name and style of J. W. Mattice & Sons, hereinafter called plaintiffs, brought suit against Miller Cattle Company, a corporation, hereinafter called defendant, to recover a balance of $2,945 alleged by plaintiffs to be due them from defendant under the provisions of a certain written contract for the purchase and sale of range cattle. Plaintiffs reside in Graham county, and defendant is a corporation doing business and having an agent in Maricopa county. The contract was executed in Maricopa county, but specifically provided that the cattle were to be delivered in Graham county; that $12,500 of the purchase price was to be paid before [38 Ariz. 183] any cattle were delivered, and the balance "when and as said cattle are delivered."
Defendant applied to the trial court to remove the case for trial to Maricopa county, alleging that it had no agent in Graham county, owned no property therein, and did not conduct any business in that county. Plaintiffs resisted the motion, and the trial court, after hearing the matter on affidavits and counter-affidavits, denied the application to remove. The case thereafter came on regularly for trial before a jury in the superior court of Graham county. The jury returned a verdict in favor of plaintiffs for the full sum prayed for, and, from the order overruling the usual motion for new trial and the judgment on the verdict, defendant has appealed.
The first question raised on this appeal is whether or not the case was tried in the proper county. It is claimed by defendant that its residence was in Maricopa county, and that it was entitled to be sued there unless the circumstances of the case brought it within the exceptions set forth in subdivisions 5 and 18 of section 3715, Revised Code of 1928. These subdivisions read as follows:
"5. Persons who have contracted in writing to perform an obligation in one county, may be sued in such county or where they reside."
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"18. Actions against railroad companies, insurance companies, telegraph or telephone companies, joint stock companies and other corporations may be brought in any county in which the cause of action, or a part thereof, arose, or in the county in which the defendant has an agent or representative or owns any property or conducts any business."
Under the terms of the contract, it was the duty of the plaintiffs to deliver the cattle in question to defendant in Graham county while it was the duty of defendant to pay for them "when and as said cattle [38 Ariz. 184] are delivered on board cars in good condition." Does this require payment in Graham county?
Defendant urges that our statute in this particular was taken from the state of Texas, and that such state has held under similar circumstances there is no implication that the payment should be made at the place of delivery. In the case of Burkitt & Barnes v. Berry, (Tex. Civ. App.) 143 S.W. 1187, the Court of Civil Appeals of Texas said:
"If an implied promise to pay in Angelina county is shown, this would not defeat defendants' right to be sued in the county of their residence. The agreement or promise to perform in a county other than that of the promisor's residence, in order to fix the venue in such county, must be in writing, and the right of a defendant to be sued in the county of his residence can only be defeated when the plaintiff brings his case clearly within the exception contained in the statute. Cohen v. Munson, 59 Tex. 237; Mahon v. Cotton, 13 Tex. Civ. App. 239, 35 S.W. 869; Russel & Co. v. Heitmann & Co., (Tex. Civ. App.) 86 S.W. 75."
In that case the only reference to payment for the goods sold was the language of the letter constituting the written contract: "Will accept 28 cents f.o.b. cars McNeal Switch for same," and the court held this language was used only to fix ...