¶1 (concurring).
¶2 I concur. The affidavit in support of the motion for a change of venue, instead of going to the merits of the defense, simply stated the grounds for the change of venue. An affidavit of merits where a defendant claims that the action should be brought in the county where he resides must show that he has a meritorious defense because the law seeks to guard against requiring the plaintiff to be transported to another jurisdiction only to find that the defendant has an unmeritorious defense. But no objection having been taken in the lower court, that question is not here reviewable.
¶3 The plaintiff contends, however, that even though the affidavit of merits in support of the motion is considered as sufficient, still, under section 104-4-4, Rev. St. 1933, the contract was to be performed in Salt Lake county, and, therefore, the trial court should have denied the motion for a change. The policy of the law generally is to require the plaintiff to wage battle in the county of residence of his antagonist and only in cases where the statute expressly provides are exceptions made. Section 104-4-4 states one of the exceptions, that is, where the defendant has contracted in writing to perform an obligation in a particular county and resides in another county. In such case it may be brought in the county where it is to be performed or in the county where the defendant resides. The section is specific that the defendant must have “contracted in writing to perform an obligation in a particular county.” This means that it must expressly appear by the contract itself that it was to be performed in a particular county or by such necessary implication that is equivalent to such express statement in the contract. See Atlas Acceptance Corp. v. Pratt, Dist. Judge, (Utah) 39 P. (2d) 710. It must appear from the four corners of the contract. The contract in this case recited that the plaintiff was a Utah corporation with its office in Salt Lake City, Utah. The plaintiff contends that since the debtor must pay at the place of business or residence of the *220 creditor where the contract is otherwise silent in that regard, that this presumption attaches and makes the place of performance Salt Lake county, and that therefore the defendant has “contracted in writing to perform the obligation in a particular county of the state,” to wit, Salt Lake county. The contention is untenable because the contract must itself show expressly or by necessary implication that it was to be performed in a particular county. The rule of law that the debtor must tender the money to the plaintiff in the county where the plaintiff resides or has his place of business is for the purpose of determining whose duty it was to seek out the other. The plaintiff would have us take the mere recitation in the contract that the plaintiff’s place of business is in Salt Lake county and attach to it the rule of law that the debt is payable there and by that method make it work a result that the defendants have contracted in writing to perform the obligation in Salt Lake county. The statement of the proposition answers itself. The defendant has not so contracted where it requires the aid of a presumption which the law raises for another purpose. In short, the recital plus the presumption does not amount to contracting in writing. The contract must itself expressly so provide or it must appear by necessary implication from the language.
¶4 Now as to the merits: The defendants made an offer through an agent which consisted of two contemporaneously drawn instruments. The plaintiff’s agent failed to transmit one of the instruments. The principal, therefore, unknowingly accepted what it thought was the offer consisting only of the signed printed form. Since the offer of the defendants consisted of the two instruments, failure to accept the whole of the offer was no acceptance at all. Whether the agent of the plaintiff withheld one of the instruments by mistake, oversight, or fraud makes no difference. It is a simple case of one party making an offer and the other party thinking that he has accepted the offer made by the first party, when in reality he has not because the full offer has not been transmitted ; consequently there is no meeting of the minds.
¶5*221 The plaintiff apparently proved the allegations of his complaint, but the defendants, who denied that the purported contract as set up in the complaint was the contract, prevailed in their denial because when it came their turn they showed that the full offer had not been accepted but that the plaintiff’s assignor had mistakenly accepted what it thought was the full offer and that the defendants had permitted it to install the Filmfone apparatus because they were under the impression that the plaintiff’s assignor was accepting their full offer when it proceeded with the installation, the defendants not knowing that the agent had withheld part of the offer. The result is that the defendants must prevail in their denial. It is a case of a mutual mistake of fact; that is, both sides thinking that there was a contract in existence but each side being mistaken as to that because each side had a different idea as -to what offer had been accepted. Under these circumstances the only thing left for the plaintiff would be to repossess its apparatus, repaying the money paid by the defendants less the rental value of the apparatus during the time the defendants used the same.