Buckle v. Ogden Furniture & Carpet Co.

• Decision Date: 01 June 1923
• Docket Number: 3899
• Citation: 216 P. 684,61 Utah 559
• Parties: BUCKLE v. OGDEN FURNITURE & CARPET CO
• Court: Utah Supreme Court

216 P. 684

61 Utah 559

BUCKLE v. OGDEN FURNITURE & CARPET CO

No. 3899

Supreme Court of Utah

June 1, 1923

Rehearing Denied July 16, 1923.

Appeal from District Court, Third District, Salt Lake County; G. A Iverson, Judge.

Action by J. V. Buckle against the Ogden Furniture & Carpet Company. Judgment for plaintiff, and defendant appeals.

REVERSED and REMANDED, with instructions.

R. S Farnsworth, of Ogden, for appellant.

Walter C. Hurd, of Salt Lake City, for respondent.

CHERRY, J. WEBER, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CHERRY, J.

Plaintiff, a resident of Salt Lake county, brought this action in the district court of Salt Lake county to recover $ 2,402.85, which he alleged the defendant promised to pay him at Salt Lake City for goods sold and delivered. Defendant filed its answer, denying the sale and delivery of the goods, and pleading that the alleged sale was of goods of value more than $ 500, and that defendant did not accept the goods nor make any payment thereon, and that no note or memorandum of the alleged contract was signed by defendant, and that the contract was therefore void under the statute of frauds. At the same time the defendant filed a motion and demand that the place of trial of the action be changed to Weber county, upon the grounds (1) that the defendant at the commencement of the action was a resident of Weber county, and not a resident of Salt Lake county, (2) that the defendant has not contracted in writing to perform any obligation in Salt Lake county, and (3) that the alleged cause of action did not arise in Salt Lake county. The motion was supported by affidavits that the defendant, at the commencement of the action, was a resident of Weber county, and not Salt Lake county, and that defendant had not promised to pay the plaintiff any sum of money for said goods at Salt Lake City or elsewhere, or at all. The motion to change the place of trial was denied, and the action was later tried on its merits before the court, resulting in a judgment for the plaintiff, from which defendant has appealed.

The order of the trial court denying the change of venue is assigned as error. That the defendant's residence was in Weber county at the commencement of the action was not disputed. There was no claim made that the defendant had contracted in writing to perform the obligation in Salt Lake county. The complaint alleged that the plaintiff resided in Salt Lake county, and that the price of the goods was payable in Salt Lake county. The affidavit of the defendant denied that any debt was due at all, or that any promise to pay in Salt Lake county or elsewhere was ever made. The ultimate facts, for the purpose of determining the venue, were therefore that the plaintiff, while a resident of Salt Lake county, sold and delivered goods to defendant at Weber county, upon an oral contract for the payment of the price, with no stipulation as to the place of payment, and at the commencement of the action in Salt Lake county the defendant resided and was served with summons in Weber county.

Comp. Laws Utah 1917, §§ 6525-6536, relate to the place of trial of civil actions. The sections having application to the case at bar are as follows:

Section 6528: "When the defendant has contracted in writing to perform an obligation in a particular county of the state and resides in another county, an action on such contract obligation may be commenced and tried in the county where such obligation is to be performed or in which the defendant resides. * * *"

Section 6531: "In all other cases the action must be tried in the county in which the cause of action arises, or in the county in which any defendant resides at the commencement of the action. * * *"

To support the conclusion of the trial court that the action was properly tried in Salt Lake county, the argument is made that a cause of action on contract arises, not where the contract is made, but where it is broken; that the basis of the action is the omission to perform what is required by the contract; that, while the contract constitutes necessary evidence to establish a right to recover, it does not constitute the thing which establishes the right to bring the action, although such thing must have been preceded by the contract; that which gives the cause for complaint is the breach; that, in the absence of agreement on the subject, a contract for the payment of money is payable where the creditor resides, if he is within the state. Hence the cause of action in this case arose in Salt Lake county, the place of plaintiff's residence, when defendant failed to make payment for the goods, and under the provisions of section 6531 the action was properly tried there.

The general propositions of law stated as to when and where a cause of action arises may be conceded, and would be decisive of the question here, were it not for section 6528, which the foregoing argument entirely ignores. If section 6531 is not modified by section 6528, the former section in actions on contracts clearly authorizes the venue in the county where the cause of action arises whether the contract is written or oral. Section 6528, reduced to narrow legal terms, is that actions on written contracts to be performed at a particular place may be tried where the cause of action arises, or where the defendant resides. If it was intended to mean no more, then it is a vain and useless statute, and contains nothing not within the general provisions of section 6531.

But it is not to be presumed that the Legislature would enact a vain and meaningless statute. We conceive it to be our duty, if possible, to adopt that interpretation which will give effect to each provision and harmonize them with each other, so that neither will be meaningless.

In construing a statute, the legislative intent is to be determined from a general view of the whole act with reference to the subject-matter to which it applies, and it is a cardinal rule that effect is to be given, if possible to every word, clause, and sentence, and as far as practicable reconcile the different provisions so as to make them consistent and...