State ex rel. Gurney Lumber Co. v. Risjord

Siebecker, J. It appears that the relator is a Wisconsin corporation and that it has its principal office and place of [120] business at Gurney, Iron county, and that the plaintiff is likewise a domestic corporation with its office and place of business at the city of Ashland. The alleged services and the material furnished, for which compensation is demanded, were performed and furnished at the relator’s request and the plaintiff delivered the locomotive on which the repairs had been made to the relator at Ashland. The provisions of sec. 2619, Stats. 1913, govern the rights of the parties as regards the question presented for determination. The portion of the statute applicable here is: “Fifth. Of an action against any other corporation existing tinder the law of this state, the county in which it is situated or lias its principal office or place of business, or in which the cause of action or some part thereof arose.” The question here is, In which county did the cause of action alleged in the complaint of the Bretting Manufacturing Company arise ? It is contended by the relator that it arose in Iron county. This claim is made upon the ground that the Gurney Lumber Company had the right to pay the demand sued for by a remittance by mail addressed to the Bretting Company at the Ashland postoffice, and that the cause of action sued on did not, under these circumstances, arise until the relator failed to so mail a remittance at Gurney, Iron county. The argument is made that the rule stated in State v. Kenosha Home Tel. Co. 158 Wis. 371, 148 N. W. 877, namely, “where a contract, for the payment of money is silent as to the place of payment, in the absence of any legitimate inferences to the contrary the law implies that payment shall be made at the residence, office, or place of business of the creditor, if within the state,” does not govern in the instant case. It is asserted that it is the well recognized custom or usage in the conduct of business that payment of a claim of this kind, arising under the circumstances of the transaction between these parties, is usually and customarily made by a remittance by mail of a check or some other form of bank paper. equivalent to [121] •money. The facts of the case do not show that the parties had agreed that payment of' the claim was to be made by remittance by mail. Nor does it appear that plaintiff had given any special authority to relator to so remit or that there existed between these parties a custom of transacting their business in that manner. The cases of Burr v. Sickles, 17 Ark. 428; Morton v. Morris, 31 Ga. 378; Morgan v. Richardson, 13 Allen (95 Mass.) 410; and others cited to our attention do not sustain the contention that payment by remittance by mail is such an established and generally recognized usage of trade that it is implied and becomes part of contracts of the kind involved here. The effect of these decisions goes no farther than to hold that such remittances are a recognized method of payment if it appears that the parties to the transaction had such a recognized course of business or an understanding to that effect. All of these elements are wanting in this case. We are of the opinion that the rule declared in the Kenosha Case governs and controls the parties to this controversy. No time of payment having been fixed by agreement of the parties, the law fixes it at the time of delivery of the locomotive at Ashland, Wisconsin. 35 Cyc. 262. The court properly denied the application for a change of venue of the action. The relation states no cause for issuing a peremptory writ of mandamus. By the Court. — Judgment is ordered quashing the writ; the respondent to recover $25 attorneys’ fees and the clerk’s fees in this court.