[77 Ariz. 60] Shute & Elsing, Phoenix, and Hall, Catlin & Molloy, Tucson, for appellant.
Bob Barber and Franklin E. Vaughan, Tucson, for appellee.
On September 20, 1951, the parties to this action entered into a written agreement reading in part as follows:
'Witnesseth: Party of the first part, for and in consideration hereinafter named, has this day granted, bargained and hereby sells and agrees to deliver f. o. b. cars at Buyers Option Casa Grande or Tucson, [certain cattle] * * *.'
An action was brought by Tribolet in the county of Pinal in which he alleged that the defendant Fowler had failed, neglected and refused to deliver the cattle. On February 11, 1952, Fowler filed a motion and affidavit in the Pinal County court claiming that Pinal County was not the proper county[77 Ariz. 61] where the action should have been instituted, but that Pima County, the county of his residence, was the proper county. On the 15th day of February, 1952, the plaintiff Tribolet, by written pleading, objected to the transfer of the cause from Pinal to Pima county on the ground that
'This action is based upon a contract to be performed in Pinal County. Under Sec. 21-101, subdivision 5, A.C.A.1939, the proper venue of this action is laid in Pinal County.'
The cause was transferred to the Superior Court of Pima County where plaintiff made and was denied a motion to remand the case to the Superior Court of Pinal County. A trial was had before a jury which returned a verdict in favor of the defendant on the plaintiff's complaint and in favor of defendant against the plaintiff on a counterclaim. Plaintiff appealed, making nine assignments of error. The first assignment of error determines this case and is as follows:
'1. The court erred in refusing to remand case No. 37510 to the Superior Court of Pinal County, Arizona, because the Superior Court of Pinal County, Arizona, was without jurisdiction to enter the order transferring the cause to Pima County, and therefore Pima County acquired no jurisdiction to hear it.'
Plaintiff contends that where a contract provides for performance of that contract in a certain county, such county is a proper county for enforcing the contract.
Section 21-101, A.C.A.1939, reads 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.'
To determine whether the action was properly brought in the Pinal County court, in the absence of facts alleged which are not in the bounds of the above statute and Section 21-102 subsequently quoted herein, the court must look to the complaint to determine venue, Miles v. Wright, 22 Ariz. 73, 79, 194 P. 88, 12 A.L.R. 970; Greene Cattle Co. v. Hereford, 11 Ariz. 403, 94 P. 1127; Weygandt v. Larson, 130 Cal.App. 304, 19 P.2d 852; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 1937, 84
S.W.2d 533. To do this, the complaint must be construed liberally in favor of the pleader. On applying these principles we see that this complaint clearly shows that Casa Grande, Pinal County, Arizona, was the place where the contract was to be performed and therefore said county was the proper place of venue under Section 21-101, subsection 5, supra. The complaint alleges: plaintiff is a resident of Maricopa County and defendant is a resident of Pima County, Arizona; the contract, including the aforequoted portion; that in the performance of the contract and ...