No. 81-255 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

RUSSELL WOOLCOCK, d/b/a 

SPRING MOUNTAIN RANCH, 

Plaintiff and Appellant, 

BEARTOOTH RANCH, a dissolved Montana 

Corporation, BEARTOOTH RANCH, a partnership; 

VERNON SANDERS, GEORGE ELLIS, JOHN DOE I, 

JOHN DOE 11, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable John McCarvel, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

For Respondents: 

Anderson, Brown, Gerbase, Cebull & Jones, Billings, 

Montana 

Submitted on briefs: September 3, 1981 

Decided: &C 19 

a/ . PA* 

' Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a ruling in the District Court 

of the Eighth Judicial District of the State of Montana, in 

and for the County of Cascade, where the court granted 

defendants' motion for change of venue and moved the action 

from Cascade County to Stillwater County. 

Plaintiff and appellant, Russell Woolcock, d/b/a 

Spring Mountain Ranch, filed a complaint in Cascade County 

seeking both compensatory and punitive damamges. In his 

complaint, Woolcock alleged that the defendants intentionally, falsely and fraudulently made representations 

regarding a bull named Negotiator 510L. The complaint 

further alleges that Woolcock relied on these misrepresentations and purchased the bull at an auction held by the 

Beartooth Ranch on October 10 and 11, 1979. 

The defendants moved for a change of place of trial 

from Cascade County to Stillwater County. The District 

Court granted the motion on the grounds that Stillwater 

County was the residence and principal place of business of 

the defendants, was the place of the contract's performance, 

and was the place of the occurrence of the alleged torts. 

Plaintiff and appellant appeals the order changing the place 

of trial and presents the following issues: 

1. Does the complaint state a contract claim or a 

tort claim? 

2. Is Stillwater County the proper place for trial 

if the action is in tort? 

3. Was sufficient evidence presented to the District 

Court to support the change of venue motion? 
Appellant contends that his action is in tort, and, 

consequently, the contract venue statute is inapplicable. 

Appellant supports this contention by referring to specific 

language used in the complaint, such as: " . . . the representations alleged in paragraph I11 hereof were intentionally, falsely and fraudulently made for the purpose of 

causing plaintiff and the public to believe . . . that 

Negotiator 510L was the sole and only progeny of Justamere 

RN890C . . ." According to appellant, this language, coupled 

with the fact that there has been no action to rescind the 

contract, is sufficient to support an action in tort. 

In State ex rel. Dimler v. District Court (1976), 170 

Mont. 77, 550 P.2d 917, this Court stated: 

". . . Here, plaintiffs chose to affirm the 

contract and sue for fraudulent representations preceding the contract, representations 

which plaintiffs alleged induced them to sign 

the contract for purchase of defendants' 

home. 

"That such course of action is permissible 

and in fact is not a contract action has long 

been recognized in the law. 37 Am.Jur.2dI 

Fraud and Deceit, S 332, p. 439, states in 

pertinent part: 

" 'A traditional remedy ordinarily available 

to a person who has parted with something of 

value as a result of a contract or transaction induced by fraud is that he may retain 

what he has received and bring an action at 

law to recover the damages sustained. Thus, 

a person who has been injured by the fraud of 

another or others, by either a party or 

parties to a transaction or a third party or 

third parties committing fraudulent acts 

involving or bringing about the negotiation 

of a transaction, such transaction usually 

but not necessarily involving business or 

commercial dealings, may maintain an action 

at law in tort to recover damages for the 

injury received from the fraud and deceit 

perpetrated by such other or others. - The 

foundation of the action is not contract, but 

tort. . . [Emphasis in Dimler.] 

". . . 37 Am.Jur.2dr Fraud and Deceit, S 333, 

-3- 
p. 442, continues the discussion: 

"'In accordance with the right to bring an 

action for deceit generally, a buyer who has 

been induced by the fraud -- of the seller to 

purchase real or personal propert1 may ordinarily maintain an action for, or in the 

nature of, deceit to recover damages resulting from the fraud . . .' [Emphasis in 

Dimler . ] 

"Applying the authorities discussed to 

plaintiffs' allegations of misrepresentation 

on the part of defendants, these conclusions 

can be made as to plaintiffs' cause of action 

in the instant case: The cause of action 

arises from representations which plaintiffs 

claim induced the execution of the contract, 

section 13-308, R.C.M. 1947. Such representations necessarily contain an obligation to 

act in good faith. Such representations if 

knowingly false, as alleged, would be a 

'breach of an obligation' as contemplated by 

section 17-208. Additionally, a cause of 

action for fraudulent inducement can be in 

tort and thus independent of the contract and 

therefore affirmance of the contract does not 

automatically preclude suit in tort for 

fraud. Since plaintiffs' cause of action for 

fraud is based in tort, not contract, section 

17-208, R.C.M. 1947, is not controlling and 

plaintiffs can properly pray for punitive 

damages." 550 P.2d at 920-921. 

Here, the appellant has also chosen to affirm the 

contract and sue for fraudulent misrepresentations. 

Accordingly, the action is one in tort, and section 25-2- 

102, MCA, applies. That statute provides: "Actions for 

torts may be tried in the county where the tort was 

committed, subject, however, to the power of the court to 

change the place of trial as provided in this code." 

Appellant contends the tort was continuous in nature 

and that, therefore, according to section 25-2-102, IUICA, 

Stillwater County is not the proper place for trial. 

The general rule of venue has been reiterated 

numerous times by this Court. In Foley v. General Motors 
Corporation (1972), 159 Mont. 469, 499 P.2d 774, 775-776, we 

held: 

"Thus the general rule governing venue of 

civil actions is that the action shall be 

tried in the county in which the defendants 

or any one of them reside at the commencement 

of the action. 

"In order to maintain suit in another county 

than that of defendant's residence, plaintiff 

must clearly show facts relied upon to brinq 

the cause within one of the exce~tions A to the 

general rule. Hidden Hollow Ranch v. Collins, 

146 Mont. 321, 406 P.2d 365; Rapp v. Graham, 

145 Mont. 371, 401 P.2d 579." (Emphasis 

added. ) 

Also, in Rapp v. Graham (1965), 145 Mont. 371, 373-374, 401 

P. 2d 579, 581, this Court emphasized that, " [s] tatutory 

provisions creating exceptions to the general rule 

recognizing a defendant's privilege to be sued in his own 

county will not be given a strained or doubtful construction." From the authority cited above, it is apparent the 

general rule of venue shall be applied unless a clear reason 

for an exception appears. In this case, a clear reason does 

not appear. 

Appellant's contention that Stillwater County is not 

the proper place for trial is unsupported by the facts--that 

is, the defendants all resided in Stillwater County and they 

were served notice in Stillwater County. Further, the 

contract was entered into in Stillwater County, no place of 

performance was mentioned in the contract, and payment upon 

the contract was made in Stillwater County. These facts 

illustrate every aspect of the transaction was initiated in 

Stillwater County. 

It is clear from these facts that the entire action 

culminated in Stillwater County. The alleged misrepresen- 
tations, the alleged fraud and alleged deceit all 

transpired, if at all, in Stillwater County. The tort was 

committed, if at all, in Stillwater County. Even under 

section 25-2-102, MCA, which is an exception to the general 

rule of venue, appellant's contention that the continuous 

nature of the tort makes Stillwater County an improper place 

for trial does not stand up. 

First, the tort was committed, if at all, at the time 

of the auction and sale in Stillwater County. Second, since 

section 25-2-102, MCA, is an exception to the general rule 

of venue, it must be cautiously applied. The Texas Supreme 

Court, in Ryan Mortg. Investors v. Lehmann (Texas 1976), 544 

S.W.2d 456, 459, reiterated the general rule and the manner 

in which exceptions should apply when it recognized the rule 

enunciated in Goodrich v. Superior Oil Co. (1951), 150 Tex. 

159, 237 S.W.2d 969, 972, and stated: 

"The general rule of venue is, of course, 

that a defendant shall be sued in his own 

county, and however many and important the 

exceptions contained in the statute, an equal 

doubt between the exception and the rule is 

to be resolved in favor of the rule. Stated 

differently, the application of the exception must clearly appear." 

Finally, in Neely v. Steinbach (1967), 149 Mont. 119, 423 

P.2d 584, 586, this Court emphasized that, "[glranting a 

change of venue lies in the sound discretion of the District 

Court, and in the absence of manifest abuse of this 

discretion, the decision of the court below must stand. 

Little v. Strobel, 136 Mont. 272, 346 P.2d 971." 

Appellant's final contention is that the District 

Court erred when it granted a change of venue because the 

defendants had failed to present pleadings or competent 

evidence to support their motion. 
This Court does not need address this contention 

because appellant failed to present this issue for review on 

the trial court level. Rules'8(c) and 12(b), t4.R.Civ.P. In 

Chadwick v. Giberson (1980), - Mont. , 618 P.2d 1213, 

1215, 37 St.Rep. 1523, 1726, we held: "However, it is a 

well-settled rule of law that alleged error as to issues not 

raised in trial court will not be considered on appeal." 

See also, State v. Armstrong (1977), 172 Mont. 296, 562 P.2d 

1129; Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d 

48; Clark v. Worrall (1965), 146 Mont. 374, 406 P.2d 822. 

The order of the District Court is affirmed. 

Justice 

We Concur: 

3. A&& wa3 LUeeQ Chief Justice