Deimler v. Ostler , 183 Mont. 480 ( 1979 )

No. 14738
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
CLARE E. DEIMLER,
Plaintiff and Respondent,
ROBERT E. OSTLER and
JENNIE H. OSTLER,
Defendants and Appellants.
Appeal from: District Court of the Eighth Judicial District,
Honorable John M. McCarvel, Judge presiding.
Counsel of Record:
For Appellants:
Small, Hatch and Doubek, Helena, Montana
For Respondent:
Jardine, Stephenson, Blewett and Weaver, Great
Falls, Montana
Submitted on briefs: August 2, 1979
Filed: ptTy
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
Defendants appeal from an order of the Cascade County
District Court denying their motion for change of place of trial
from Cascade to Madison County.
Plaintiff is a Great Falls realtor who brought this action
in Cascade County to recover a commission for the sale of real
estate in Powell County. The complaint alleged that defendants
agreed to pay the realtor five percent of the purchase price for
his services in representing them: that the realtor performed
his part of the bargain; and that he is entitled to a commission
in the amount of $80,000. Attached to and incorporated with the
complaint are two written agreements signed by defendants. Each
provides :
"For valuable consideration I/we agree to sell
and convey to the Purchaser the above described
property on the terms and conditions hereinabove
stated and agree to pay to the above named agent
a commission amounting to 5 percent of the above
mentioned selling price for services rendered in
this transaction."
Defendants were served with process at their residence in
Madison County and timely moved to have the place of trial changed
to that county. Upon examination of the parties' affidavits,
counteraffidavits and briefs, the District Court properly denied
the motion.
The general rule of venue is that "civil actions ...
shall be tried in the county in which the defendant resides at
the commencement of the action." McGregor v. Svare (1968), 151
Mont. 520, 523, 445 P.2d 571, 573. See also section 25-2-108, MCA.
However, "Actions upon contracts may be tried in the county in
which the contract was to be performed . . ." Section 25-2-101,
MCA. In order for the performance exception to apply "the place
of performance must be evident either by (a) the express terms of
J the contract, or (b) by necessary implication that a county other than
that of defendant's residence is intended to be the county
of performance." Hopkins v. Scottie Homes, Inc. (1979),
Mont . , 591 P.2d 230, 232, 36 St.Rep. 410, 412; Brown v. First
Federal Sav. and L. Ass'n of Great Falls (1964), 144 Mont. 149,
The contract for payment of commission contains no ex-
press terms dealing with place of performance. The issue is
thus whether Cascade County was intended to be the place of per-
formance by necessary implication. In resolving the question,
this Court may examine the contract, which is part of the plead-
ings herein, as well as the parties' affidavits. Hopkins v. Scottie
Homes, supra, Nont. at , 591 P.2d at 232, 36 St.Rep. at
410;412; State v. District Court (1918), 54 Mont. 602, 608, 172 P.
The undisputed facts which this Court must accept as true,
Hopkins v. Scottie Homes, supra, citing Fraser v. Clark (1954),
128 Mont. 160, 172-173, 273 P.2d 105, 112, are as follows: Plain-
tiff realtor is a resident of Cascade County and maintained his
office there. The earnest money is on deposit with plaintiff in
Cascade County. In order to facilitate the closing of the trans-
action and in recognition of the dispute over the commission,
part of the purchase money was placed in escrow with a Great Falls
bank pending the outcome of this litigation.
There is but one disputed fact. Plaintiff stated:
"That it was understood and agreed that the com-
mission to be paid to your affiant under the terms
of the original Receipt and Agreement to Sell and
Purchase and the subsequent agreement would be
payable to your affiant at Great Falls, Cascade
County, Montana, at his agency in said county."
Defendants flatly deny any such agreement or understanding.
The language of Brown v. First Federal Sav. and L. Ass'n
of Great Falls (1964), 394 P.2d at 1021, is appropriate.
"Since the facts of the affidavit are contradicted,
they cannot be taken as true within the rule of
the Fraser case, supra. Therefore, this issue
was placed in the discretion of the district
judge, who resolved the conflict in favor of
the plaintiffs in denying the motion for change
of venue. We will not disturb the exercise of
discretion in the absence of a clear evidence of
abuse thereof."
There is no abuse of discretion in this case. The undisputed
facts, as outlined above, support the trial court's determin-
ation that by necessary implication the parties intended Cascade
County to be the place of performance.
The District Court is affirmed.
Chief Justice
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Ju tices