Opinion
May 21, 1909.
G. Harold Merry, for the appellant.
H. Leroy Austin, for the respondent.
The action is one for the recovery of the purchase price of paints sold to the defendant by the Tropical Oil Company, an Ohio corporation, the account for which has been assigned to the plaintiff who is the eastern sales manager and salesman of such company, and who resides in Greene county. The defendant denies the material allegations of the complaint, and also sets up a breach of warranty and misrepresentation as to the quality of the paint. The affidavit of the defendant names ten witnesses, including its president, all of whom reside in Onondaga county except one, who resides in an adjoining county. The plaintiff's affidavit names eleven witnesses residing in Greene county. It is urged on behalf of the plaintiff that one of the defendant's witnesses is an expert, and that four of the other witnesses are employees of the defendant, and, therefore, that none of these witnesses nor the president should be considered upon this application. We may concede without deciding this, but still the motion should have been granted. The plaintiff's witnesses are all on the question of the quality of the paint, which is the principal question to be tried, and it is stated that it will be shown by nine of them that they have purchased or used paint "identical with the paint in question." It is not pretended that any of these nine witnesses ever saw or had any of the paint which was shipped to the defendant, but that they had purchased or used paint manufactured by the plaintiff's assignor and shipped to others. It is not apparent how they could know anything concerning the paint in question. Two only of the plaintiff's witnesses are shown to be in a position to give material evidence on the issues involved here, one of whom it is claimed went to Syracuse and purchased from the defendant a portion of the paint which it received from the Tropical Oil Company, and another that he formerly worked for that company and that he was familiar with the composition and manufacture of the paint in question. They are, therefore, material witnesses on the question of quality. This being the situation, there is no preponderance in the number of material witnesses in favor of the plaintiff over those of the defendant. All the transactions took place in Onondaga county. This sales agent, who is now the plaintiff, and the defendant made the contract there, and the paint was delivered there. Such of it as had been sold has been used there. If the claim had not been assigned to the plaintiff the action would necessarily have been required to be brought there. Under such circumstances we think the action should be tried there. The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.