#### State ex rel. Gurney Lumber Company vs. Risjord, Circuit Judge.

*May 4*

June *1, 1915.*

*Payment: Where and how to he made: Custom and usage: Corporar tions located in different counties: Repair work: Remittance iy mail: Action: Where cause of action arises: Place of trial.*

1. 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 he made at the residence, office, or place of business of the creditor, if within the state.

;2. Payment by mail remittance is not such an established and generally recognized usage of trade that by implication it becomes part of a contract for the repair in one county of a machine owned by a corporation having its place of business in another county.

:3. Where a machine was repaired by a domestic corporation in the county where it had its place of business and was there delivered to the owner, a corporation having its place of business in another county, the cause of action for labor and materials furnished arose at the time and in the county of such delivery, in the absence of any agreement or any recognized custom of business between the parties to the contrary; and the action is therefore properly triable in that county under sub. 5, sec. 2619, Stats.

MaNdamus to tbe Hon. G. N. Risjobd, Judge of tbe Cir-. -cuit Court for Ashland county.

*Writ quashed.*

Tbe Bretting Manufacturing Company is a corporation organized and existing under tbe laws of tbe state of Wisconsin, *119having its place of business in the city of Ashland, Ashland county, Wisconsin. The relator, the *Gurney Lumber Com*pany, is a corporation organized and existing under the laws of the state of Wisconsin and has its place of business at Gurney, in Iron county, Wisconsin. The Bretting Manufacturing Company did repair work on a locomotive of the *Gurney Lumber Company.*These repairs were made at its shops in the city of Ashland. After the locomotive had been repaired it was delivered to the *Gurney Lumber Company*in the city of Ashland. The *Gurney Company*has not paid the bill for repairs. The Bretting Manufacturing Company commenced an action against the *Gurney Lumber Company*to recover the amount due for such labor and material. The action was commenced in the circuit court for Ashland county. The *Gurney Company*served notice upon the Bretting Manufacturing Company demanding a change of venue to the circuit court for Iron county. The Bretting Company did not consent to such demand for the change of the place of trial of the case. On the 31st day of March the relator obtained an order to show cause in the Ashland county circuit court to. secure such change of venue of the action. After the hearing of said order the court made an order denying the application.

This is an application to this court to compel by *mandamus*the judge of the circuit court for Ashland county to change the venue in the action of the Bretting Manufacturing Company against the relator, the *Gurney Lumber*Company, from Ashland county to Iron county.

Eor the plaintiff there was a brief signed *by A. L. Buggies,*attorney, and Banborn, *Lamoreux & Pray,*of counsel, and oral argument by *B. H. Btebbins.*

Eor the defendant there was a brief by *William F. Bhea,*and oral argument by *B. W. J ones.*

Siebecker, J.

It appears that the relator is a Wisconsin corporation and that it has its principal office and place of *120business 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.