Palfreyman v. Trueman
| Decision Date | 04 November 1943 |
| Docket Number | 6623 |
| Citation | 142 P.2d 677,105 Utah 463 |
| Court | Utah Supreme Court |
| Parties | PALFREYMAN v. TRUEMAN, District Judge |
Original proceeding by B. D. Palfreyman for a writ of mandamus directed to Lewis V. Trueman, District Judge of the District Court of Weber County, requiring the respondent to transfer a case wherein the petitioner was a defendant to Utah County.
Alternative writ granted made permanent.
A. H Christenson, of Provo, for plaintiff.
Arthur Woolley, of Ogden, for defendant.
OPINION
This is a proceeding in mandamus. Heretofore an alternative writ of mandamus issued from this court requiring respondent to transfer the case of R. C. Green, Plaintiff, v. B. D. Palfreyman, Defendant, which is pending in the District Court of Weber County, Utah, to Utah County, Utah, or show cause why it should not be done.
R. C. Green commenced an action against B. D. Palfreyman, the petitioner herein, in the District Court of Weber County for an accounting of profits which he alleged were due him under a certain written agreement. The petitioner herein is a resident of Provo, Utah County, Utah, and the summons was served on him in Utah County. Within due time petitioner herein filed a general demurrer to the complaint and a demand for change of venue from Weber County to Utah County, on the ground that he was a resident of Utah County; with this motion for change of venue were filed the required affidavits of residence and merit. No traverse and no objections to the sufficiency of the affidavits were made. After hearing the motion to change the venue was denied by the district court.
R. C. Green based his suit upon a written contract entered into between B. D. Palfreyman as first party and himself and one J. D. Watson as second parties. We shall not set forth this agreement verbatim but only give in substance and effect those terms which we consider relevant to a decision of the question involved in this proceeding.
The contract recited that B. D. Palfreyman had an agreement with the Better Built Homes and Associates, Inc., for building the foundations for 2,000 houses in and near Ogden, Utah [which is in Weber County ]. By the terms of the contract the second parties were to supervise and execute the contract referred to in the recital and in consideration for this they were to receive $ 10 per diem and 25% of the net profits. B. D. Palfreyman was to collect all the moneys due on his agreement with the Better Built Homes and Associates, Inc., and to deposit those moneys in a separate banking account. All expenses were to be paid from this account. Office and sleeping quarters were to be provided at or near the scene of construction, each party to bear one-third of the costs.
Subsequently B. D. Palfreyman entered into a supplemental agreement with the Better Built Homes and Associates, Inc., whereby he was to do additional work on the 2,000 houses. Watson and Green thereupon agreed to do this additional work under the same terms as agreed upon in their contract with B. D. Palfreyman.
Sec. 104-4-4, U. C. A. 1943, provides that:
"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."
This section has been interpreted by this court to apply only to written contracts which specify the place where the defendant is to perform an obligation. If from the face of the contract it can be determined that the obligation of the defendant is to be performed at a place other than the residence of the defendant, then the plaintiff has the choice of bringing his suit either in the place where the obligation is to be performed or in the county where the defendant resides. See Buckle v. Ogden F. & C. Co., 61 Utah 559, 216 P. 684.
For the purpose of venue, the place where the defendant is to perform the obligation must be determinable from either the express terms of the written agreement or from the necessary implication of those terms. Atlas...
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