Hunt v. Bratt

vmtoe: ' tract:“statute constmea. The petition alleges the delivery of the trees, that defendant received them, but failed and refused Pa7 for the same! That the action was properly brought in Marshall county, plaintyj? re]jes Upon section 2798 of the [Revision, which declares “ that when by its terms, a contract is to be performed in any particular place, action for a breach thereof may be brought in the county in which such place is situated.”

The court below did not err in the construction given to this statute. The rule is that, in personal actions, suits shall be^ brought in the county of defendant’s residence. This section introduces an exception. Defendant promised to pay for these trees, but did not, by the terms of the contract undertake to make such payment in Marshall county.

The action is for Ms alleged breach, and not, of course, upon plaintiff’s undertaking to deliver the trees. It was not the intention of the statute to authorize the suing of a defendant in a county where, by implication merely, he was to make the payment.

He should undertake or promise in terms to pay or perform in the particular place, to justify the bringing of the suit in the county where such place may be situated. Thus, if A. in Marshall county, should buy goods of B. in Keokuk, in Lee county, or should, in writing, order goods from there, while the law would imply a promise to pay at the time he received the goods from the hands of the seller, there would be no .undertaking to pay there in terms, of within the meaning of the statute. So, in this case, while plaintiff might have kept his trees *173•until payment was made, if he parted with them, he must seek his remedy in the county of defendant’s residence, and not in that where he was to perform on his part. Appellant’s construction unwarrantably extends the language of the statute, and it would not unfrequently operate to the prejudice and surprise of the party charged with a breach of his contract.

Affirmed.