Wilkinson v. McCarthy

Per Curiam. Tbe defendant, claiming to be a resident of Woodbury county, filed a motion for a change of tbe place of trial under the provision of Code, section 3504. This motion was denied, and tbe cause tried to a jury, and verdict returned for tbe' plaintiff. It was shown without controversy that tbe alleged contract of sale was not in writing, and that tbe defendant, McCarthy, was a resident of Woodbury county, Iowa, and not a resident of Calhoun county, where tbe suit was brought. After tbe return of tbe verdict the defendant renewed bis objection to tbe jurisdiction of tbe court, and moved for a judgment of dismissal notwithstanding verdict. Tbe motion was sustained, and cause dismissed. [293] Upon the face of this statement the judgment was evidently right, as the law of this State requires personal actions to be brought in the county where the defendants, or some of the defendants, if more than one, actually reside. Code, section 3501. The appellant concedes this general rule, but contends that the case before us falls within the exception provided for in Code, section 3498, which reads as follows: “ An action may be brought against any corporation, company or person engaged in the construction of a railway, canal, telegraph or telephone line, or any contract relating thereto or any part thereof, or for damages in any manner growing out of the work thereon, in any county where such contract was made or performed in whole or in part, or where the work was done out of which the damage claimed arose.” The evidence relied upon to bring plaintiff’s claim within the terms of this section tends to show that the defendant was a subcontractor engaged in the grading or construction of a railroad in Calhoun county; that he sent one Birdsáll, who was an employe or subcontractor under him, to open up the work of grading in plaintiff’s neighborhood, with an agreement or understanding that said defendant would pay or provide for the grain to be fed to Birdsall’s teams; and that Birdsall purchased the grain in question from plaintiff, and caused the price thereof to be charged to defendant. Now, for the purposes of this appeal it may be conceded that the defendant was liable to the plaintiff for the grain furnished to Birdsall, and that, so far as this feature of .the controversy is concerned, plaintiff was entitled to the benefit of the verdict in his favor: but this fact does not cure the want of jurisdiction in Calhoun county. An attentive reading of section 3498 will make it very clear that the plaintiff’s claim does not come within its terms. To call for an application of this provision, the suit must be based upon a contract “ relating to the construction ” of the railroad, or upon a claim “ for damages growing out of the work thereon,” and the claim in suit does not fall within either description. A [294] contract for the purchase of grain for the horses of a subcontractor or an employe has no more connection with the " construction of the railroad ” than would a similar agreement for the purchase of harness for such horses, or of food or clothing for their driver. Indeed, if such indirect or remote relation to the construction of the road could,- by any latitude of interpretation, be held within the intent of the statute, then there is nothing in the record to show, except by inference, that the grain sold by the plaintiff was in fact furnished for or fed to horses used in the grading or building of the road. The conclusion above stated disposes of the case, and we .need not consider other questions argued. The judgment of the district court is affirmed.