256 CALIFORNIA APPELLATE DECISIONS. Appeal from the Superior Court of the City and County of San Francisco-James M. Troutt, Judge. For Appellant-Charles R. Holton. For Respondent-James A. Davis. This appeal is from a default judgment and from an order denying defendant's motion to vacate the same. The defendant was personally served with summons on May 13, 1908, and his default duly entered on June 13th of the same year after the 30 days had expired which were allowed him by law in which to answer. On July 16th he served and filed a notice, accompanied by affidavits, to be relieved of the default, claiming that it occured through his mistake, inadvertence and excusable neglect. In the affidavit of defendant he states that he did not know that he had to file a written appearance or answer, and that he did not go to his own attorney, but went to the office of the plaintiff's attorney, had a conversation with plaintiff's attorney relative to the case, in which defendant stated that if plaintiff's attorney would appoint a day for the trial he, defendant, would be on hand with his attorney, and that plaintiff's attorney replied "All right". Defendant further averred that he relied upon such statement, and expected plaintiff's attorney to notify him when the case was ready for trial, and that, relying upon such statement, he took no further steps in the matter. An affidavit was filed on behalf of the plaintiff, in which plaintift's attorney denies that any such conversation ever took place, or that he ever in any way stated anything to cause defendant to believe that he would notify him when the case would be ready for trial. Plaintiff's attorney further states in his affidavit that defendant, after being served with the summons, came to his office, and assumed a belligerent attitude, informing the attorney that he would fight the case to a finish, whereupon plaintiff's attorney notified defendant that he did not care to discuss the matter with him; that defendant would have to file an answer and should get an attorney, whereupon defendant replied that he did not want a lawyer, that he would be his own lawyer. Defendant did not employ any lawyer nor take any steps in the case until more than two months after he was served with summons. As has been said many times a motion to set aside a default judgment rests largely in the discretion of the trial court. It is only in cases where it plainly appears that such discretion has been abused that this court will interfere. It is sufficient to say that in this case no such abuse of discretion appears. The defendant could read, and the summons expressly told him the time within which he must appear and answer. He let the time pass, and never even consulted an attorney. He was guilty of such carelessness and lack of diligence as could not be imputed to a prudent business man in a matter of material concern to himself. While courts are liberal in relieving parties of defaults caused by inadvertence or excusable neglect, and while they much prefer that a case should be heard on its merits, yet they do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs. There must be rules and regulations by which rights are determined and under which judgments become final. If this court should determine that the defendant, as matter of law, was entitled to relief in this case, there could scarcely be a default judgment that would not have to be set aside, provided the proper affidavits could be procured from the defendant. We must presume that the court believed the statements made in the affidavit of plaintiff's attorney, and that the defendant was told that he must file an answer and get an attorney. Where a party wilfully slumbers upon his rights when he should be alert, and makes no efforts to protect himself, courts cannot patiently listen to flimsy excuses and the claim of ignorance of the law. It was the duty of defendant to read the summons, and not only to read it but to heed it. The judgment and order are affirmed. We concur: KERRIGAN, J. HALL, J. Civil No. 565. Third Appellate District. COOPER, P. J. September 1, 1909. J. C. KROGH, Plaintiff and Respondent, v. PACIFIC GATEWAY AND DEVELOPMENT COMPANY (a Corporation), Defendant and Appellant. ACTION ON CONTRACT-DAMAGES-FRAUDULENT SALE OF CORPORATE STOCK-VENUE-RESIDENCE OF DEFENDANT CORPORATION-ABSENCE OF AVERMENT OF EXECUTION-PERFORMANCE OR BREACH WITHIN ORIGINAL COUNTY-CHANGE OF PLACE OF TRIAL.-In an action against a corporation for damages for fraudulent representations made by its authorized agent in the county in which the action is brought relating to a sale of certain shares of its stock, the defendant is entitled to a change of place of trial to the county in which its principal place of business is located, when the complaint fails to show that the contract was either made, to be performed, or that the breach occurred in the former county. ID.-CORPORATION LAW-RESIDENCE OF CORPORATION.-The principal place of business of a corporation is its residence. Appeal from the Superior Court of Fresno County-H. Z. Austin, Judge. For Appellant-Ashley & Neumiller, Everts & Ewing. Defendant is a corporation organized under the laws of this state and its principal place of business is the city of Stockton, San Joaquin county. The action was commenced in the superior court of the county of Fresno. Defendant appeared and, at the time of filing its demurrer, filed an affidavit of merits and made demand and moved the court that the place of trial be changed from Fresno county to San Joaquin county. The motion was denied and defendant appeals from the order. The action was commenced to recover damages for the false and fraudulent representations alleged to have been made by the authorized agent of defendant in the county of Fresno, relating to the sale of certain shares of the defendant corporation to plaintiff whereby he was damaged. The action is clearly a personal or transitory action. It does not fall within the provisions of either sections 392, 393 or 394, Code of Civil Procedure, but does come within the provisions of section 395 of that code which provides that "in all other cases, the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action." Where commenced in the wrong county the place of trial may be changed in the cases mentioned in section 397, as here, "when the county designated in the complaint is not the proper county". The principal place of business of a corporation is its residence. (Cohn v. C. P. R. R. Co., 71 Cal. 488; Buck v. The City of Eureka, 97 Id. 135; Trezevant v. Strong Co., 102 Id. 48.) The complaint alleges that in the month of January, 1906, in the county of Fresno, the defendant by its authorized agent, one Abrams, represented to plaintiff that defendant had entered into a contract with said Abrams and one Brandt whereby upon the payment of a certain sum of money to Abrams and Brandt they would transfer to defendant certain valuable oil-bearing lands situated in San Benito county; that Abrams and Brandt and certain other persons had each subscribed for 25,000 shares of defendant corporation and had each paid to defendant the sum of $5000.00 therefor and that the money so paid would be used to pay Abrams and Brandt for said land; that should plaintiff purchase 25,000 shares and pay $5000.00 therefor the money so paid would be applied, together with the money paid by the other said subscribers, in the purchase of said land and that defendant would thereupon proceed to develop said property by sinking wells, etc.; that "plaintiff, believing said representations and relying thereon, in the belief that they were true, thereafter subscribed for 25,000 shares of the capital stock of said corporation and, on or about January 10, 1906, paid to said corporation therefor the sum of $5000.00". Then follow averments showing that said representations were false and made to deceive plaintiff and that in fact no money was paid to defendant except as paid by plaintiff and that defendant has never acquired any oil land and has never developed any oil land; that said stock is of no value and that defendant "has never issued to plaintiff a certificate of said stock." Section 16, article XII of the constitution provides as follows: "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." In Cohn v. C. P. R. R. Co., supra, it was held that "in an action against a corporation for damages for breach of contract, the defendant is entitled to a change of place of trial to the county in which its principal place of business is situated, when the county in which the action was brought is not the one in which the contract was made, or was to be performed, or in which the obligation arose, or in which the principal place of business is situated". It cannot be said from any facts set forth in the complaint that the contract sued upon was made or was to be performed or that the alleged liability arose or that its breach occurred in Fresno county. But it does appear by the affidavit that the principal place of defendant's business is in San Joaquin county. The only contract shown by the complaint was made and was to be performed subsequently to the representations made at Fresno county. No obligation or liability or breach occurred at Fresno county so far as appears. The alleged representations made by Abrams may have induced plaintiff to subscribe for the stock and pay his money to defendant for the same but this took place, as appears from the complaint, after the representations were made and not until then did any obligation arise, and defendant's alleged breach occurred still later. In Trezevant v. Strong Co., supra, the construction placed upon the section of the constitution above quoted, in Levis v. S. P. Coast R. R. Co., 66 Cal. 209, and National Bank v. Superior Court, 83 Cal. 498, was followed. It was held, as in National Bank v. Superior Court, that "where a corporation is sued in any one of the counties mentioned in this section, it cannot demand a change of venue as matter of absolute right, but only as in other cases and for other reasons than that the county in which the action is commenced is not the proper county". But even as held in these early cases plaintiff has not brought himself within the provisions of the constitution and defendant is entitled to a change of the place of trial under the last clause of the section. But if we are mistaken in this view of the facts as shown still defendant is entitled to the same right in the matter as would be accorded to a natural person (Grocers etc. Union v. Kern etc. Co., 150 Cal. 466); and if defendant were a natural person there could be no doubt of its right in the case. Lewis v. South Pacific Coast R. R. Co., supra, was distinctly overruled in Grocers etc. Union v. Kern etc. Co., insofar as it held that the provision of the state constitution is not in conflict with the provision of the fourteenth amendment of the constitution of the United States. In Grocers etc. Union v. Kern etc. Co., the right claimed was under section 392, Code of Civil Procedure, and the court said: "No conceivable ground can be suggested why a natural person should have the right of trial of an action involving an interest in land in the county where the land is situated and the same right should be denied to a corporation." What is true of the rights of corporations arising under section 392 must be true of the rights of corporations arising under section 395. We see no escape from this conclusion. Respondent has filed no brief in the case, from which we might infer that he concedes the correctness of appellant's position. Whether this be so or not, in fairness to the court respondent should have given us such assistance as he could if, after the appeal, he still believed the trial court was justified in denying the motion. The order refusing a change of venue of the action is reversed. CHIPMAN, P. J. We concur: BURNETT, J. Civil No. 579. Third Appellate District. September 1, 1909. AGGLER, MORRISON, HANSEN CO., Plaintiff and Respondent, v. A. C. DAUPHINY & CO., Defendant and Appellant. ACTION FOR GOODS SOLD-PURCHASE THROUGH AGENT-MANNER OF ACQUISITION OF PLAINTIFF EVIDENCE-PROOF OF PURCHASE-. -ABSENCE OF PREJUDICE.-A defendant is not prejudiced in an action for goods sold, by the admission in evidence of proof of the sale of such goods to the plaintiff and payment therefor, where the former claims that such goods were sold to it by the vendor of plaintiff instead of by plaintiff itself. Appeal from the Superior Court of Humboldt County-G. W. Fiunter, Judge. For Appellant-Henry L. Ford and Adam Thompson. Action for the value of certain goods, wares and merchandise alleged to have been sold and delivered by plaintiff to defendant. The cause was tried by a jury and plaintiff had the verdict for $336.30, on which judgment was entered. Defendant appeals from the judgment on bill of exceptions. The defense on which defendant relies is set out in its answer and may be thus summarized: That about August 26, 1904, the United Breeders Company and plaintiff, through their agent, one Andrews, gave to defendant the exclusive agency for handling and selling an article called Baum's Stock Food in the city of Eureka, Humboldt county, and territory north of said city in said county, and "let the said defendant have one half car load of said Baum's Stock Food to sell" and as inducement to defendant to handle said products said Andrews as such agent "agreed that he would move (i. e. find sale for) all of said half car load that said defendant would send for"; that relying on said promises and that "defendant should be the exclusive agent for the handling and selling of said Baum's Stock Food (in the territory named), until all said merchandise in its possession was sold or removed" and that said Andrews as such agent "would move the entire half car load of said Baum's Stock Food" defendant "sent for a half car load of said Baum's Stock Food in the form of paper writing and manner as made and dictated by said Andrews, the agent of said Breeders Company and plaintiff's and that said stock food was thereafter delivered to the said defendant under the terms as aforesaid, which is the same half car of merchandise mentioned and referred to in plaintiff's complaint"; that it was agreed that said Andrews "should sell the same, and as long as any of said Baum's Stock Food and products was in its possession that the defendant should remain and be the exclusive agent for handling and selling the same in the said territory as aforesaid." It is then averred that the said Andrews did not sell all of said stock food as he agreed to do, but that defendant sold all it could so sell; that without defendant's knowledge or consent plaintiff and said United Breeders Company through their agent, Andrews, and in violation of said agreement established another agency in said territory and placed said stock food on sale therein with their newly appointed agent and thereupon defendant notified the said United Breeders Company and |