*1 pay you gravel to soon as would eight work and intended as have been inches thick some possible. money I have owed for the entire distance. hope by that I receive No- to 1st As the measurements I will vember. As as I receive this soon engineer, Greenhalgh Mr. testified that pay to you send some. not be able he measured the length of the road and it, you pay all will as but balance 1,584 it to be long. found feet possible. soon as Please do not do justified We think the court was in hold- hearing more work on road without ing that Mr. obligated Mitchell was pay from me. gravel placed road, for the upon the but we Ben Mitchell do not think the justifies evidence finding a Greenhalgh sued Mitchell for 540 tons of that there were 540 job. tons used for the per material at ton and use five hours $2.00 preponderance We think the of the evi- hour, per of the bulldozer at $22.00 dence shows that the gravel was more near- a total After the evi- hearing tons, ly 250 than it tons was and that a dence, court, a sitting trial without granted new trial should be as damages
jury, made a memorandum as fol- decision only unless the will consent to a lows: diminution award to $710.00. appear Exhibit would be determi- The case remanded to the trial court case. native of this grant with directions to newa trial on the prayed for. damages issue of unless the elects The mathematics case create some accept remittitur the court as set justifiable confusion. testi- out No above. costs are awarded. gravel per fied that he at ton bought $.65 and hired trucks to deliver it. He also HALL, MAUGHAN and just total testified that the cost to him was JJ., concur. per under ton and that he let Mitchell have it did present at cost. He not bills WILKINS, J., concurs in result. showing tonnage testify but did
that each load hauled contained buck- eight
ets of material and that each bucket held
three yards. cubic That would be 24 cubic
yards per were load. There 18 loads which yards.
would amount to cubic testimony qualified engi- civil weighed
neer showed that this material 2,800 pounds per yard. tonnage cubic DAHNKEN, COTTONWOOD, INC. OF would be if the 605 tons estimate of the corporation, Appellant, Plaintiff and plaintiff was correct and not the 540 engineer claimed. The testified Andy MARSHINSKY, Individual, that gravel he measured road and the Respondent. Defendant and it; feet; upon 1,280 length distance, gravel and of 75 feet had no at all. He testified average also Supreme Court of Utah. upon width gravel the road was twelve the average depth feet and gravel was 3.93 inches. The yardage total computation
from this would be 175 cubic 2,800
yards gravel pounds per at
yard, there be 245.55 tons would
road. engineer testified if 540 road, placed upon
tons had been
597 Statute. From the granting of defendant’s motion to dismiss for lack jurisdiction him, over appeals. complaint alleges that on December the defendant came into its store for which plaintiff’s clerk by mistake charged him for it instead of the correct price of $1,595.00. It makes no contention that the defendant engaged business, other address, number, had telephone bank account property activity within the state of Utah.1 question sole presented is whether such a single transaction within this state is to render the of the Utah the use long-arm statute.
It is true that our legislature has declared public policy of this state is to provide its citizens with the most effective possible means seeking for against redress Nevertheless, nonresidents.2 so, in doing good fairness and require conscience we accord to citizens of other states who may visit in our state or who desire to make purchases protections the same Bettilyon, Verden E. City, possible inconvenience and hardships by appellant. long distance expect lawsuits as we to be McCoy Ryberg John L. McCoy, Salt accorded our citizens in similar circumstanc- Lake respondent. defendant and es in our reason, sister states.3 It is for this others,
among
that we have held that a
person
Justice:
who comes into our state as a visitor
single
and makes
purchases or engages in
Dahnken,
brought
Inc.
this ac-
single transactions of a transitory nature
Andy
Marshinsky, a
does not come within the meaning of the
resident,
Wyoming
for recission of
to,4
statute referred
but there must be some
tract,
price,
or for the balance of the
aon
activity of a more
purpose-
substantial and
ring purchased by defendant at its store in
ful nature.5
County.
Lake
Salt
Defendant was
provided
served as
in U.C. What has been
impels
said herein
A.1953, 78-27-25,
Long-Arm
so-called
agreement with the determination
Corp.,
Whalen,
Company
Utah,
1. See Hill v. Zale
25 Utah 2d
3. Cate Rental
v.
listing
P.2d
factors that
be con-
P.2d 707.
sidered.
Agency
Morgan,
4. Transwestern General
U.C.A.1953,
Utah,
provides jurisdiction
78-27-22
MAUGHAN, J.,
result.
concurs in
strates
purchas-
that the defendant’s act in
ing
ring
the
in Utah
probably purpose-
WILKINS,
(concurring
Justice
with com-
(or
ful and not fortuitous
at least a reasona-
ments):
assumption
made),
ble
thereon can be
and
the
agree
I
defendant
not —and
therefore the matter for our consideration
should not
to the
of
is reduced to a measurement
of
be—
in this matter.
the Utah courts
aspects
quality
of the
of defendant’s con-
tacts.
plaintiff
complaint
in its
states that
and
plaintiff’s
through
clerk
mistake
inad-
(1)
in
transaction
this case
of
because
ring
vertence sold
claim, (2)
the relative smallness of the
(and
paid
sum)
fully
this
completion by
parties
both
to the transac-
of
price
the actual sales
instead of
(simultaneous
delivery
and
further
this act
plaintiff
states
therefor),
payment
(3)
and
other attendant
injury
in
plaintiff
“has caused
to the
this
alleged
plaintiff’s
circumstances
in
com-
state.”
plaint about
mistake being
attributed to
plaintiff’s
clerk does not
assume
level
or
Nothing
complaint
in the
affidavits
play
justice”6
of “fair
and substantial
a result of the
motion
filed as
defendant’s
which
permit jurisdictional
should
assertion
precisely
fully
quash
state
the acts
by Utah over this defendant.
the long-arm
which
relies in
(1),
statute,1 though
(2),
(3)2
subsections
The inconvenience
expense
and
to de-
may apply. Assuming one of
enumer-
fendant —in
context
this
(it
applicable3
ated
acts is
seems
case—“ .
.
.
pro-
reach[s]
(2)
(1) or
subsection
is the most fertile act
portions, especially
plaintiff’s
when the
rely)
on which
and
relatively small,
could
claim is
that the defendant
that a
exists
one or more
[may
nexus
between
financially
be
compelled to de-
well]
Ann., 1953,
1.
Washington,
Utah Code
Sec. 78-27-24.
4.
International Shoe
Co.
310, 316,
U.S.
66 S.Ct.
6.Note suggest fault.”7 do not wish that a Utah
single transaction with forum jurisdictional not be the basis
state by Utah but do believe that
assertion noted ante in this case of a sin-
infirmities short a proper transaction do fall
gle
assertion.
A realistic evaluation averments complaint, both expense convenience and in liti-
defendant’s
gating scope controversy, asserting the interest of forum’s
jurisdiction requires an affirmance of the *4 quashing service
District Court’s order complaint. PRESS, STERLING Respondent, Sybrowsky, L. PETTIT and John dba Publishing Company,
Investor’s Appellants.
Defendants and
Supreme of Utah. Court
Day Day, H. Barney, Murray, David appellants. defendants and Fillmore, Jeffery W. .respondent.
MAUGHAN, Justice: appeal Defendants $1,314 awarding plaintiff unpaid on an Jurisdiction, Strachan, Utah L.R. In Personam