No. 83-153 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DAVID J. LETFORD AND DEBORAH R. LETFORD, 

Plaintiffs and Respondents, 

-VSWILBERT KRAUS AND VIVIAN L. KPAUS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Granite, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Rex Palmer, Missoula, Plontana 

For Respondents: 

J. Allen Bradshaw, Philipsburg, Yontana 

Filed: 

Submitted on Briefs: July 21, 1983 

Decided: November 15, 1983 

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Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant sellers of real property in Granite County 

appeal from a Granite County District Court order denyinq 

their request for a change of venue to Missoula County. 

Plaintiffs purchased the real property from the defendants 

and the sole issue for trial is whether defendants breached 

their warranty to deliver the property without defects. We 

affirm and hold that venue is proper in Granite County. 

The buyers, David and Deborah Letford, filed suit in 

Granite County against the sellers, Wilbert and Vivian Kraus, 

alleging a breach of warranty in failing to deliver real 

property free of defects, the real property being in Granite 

County. At the time suit was filed, the buyers were 

residents of Granite County and the sellers were residents of 

Missoula County. The defendant sellers moved on three 

grounds to have the trial changed to Missoula County. First 

they alleged that, as residents, they were entitled under 

section 25-2-108, MCA, to be sued in the county of their 

residence. Second, they alleged that the contract was to be 

performed in Missoula County. Third, they alleged that 

convenience of witnesses required a change of venue to 

Missoula County. 

We hold that the trial court properly found the contract 

was to be performed in Granite County, which, under section 

25-2-101, MCA, defeats the right of the sellers to be sued in 

their county of residence. We further hold that the trial 

court properly exercised its discretion in holding that the 

convenience of witnesses did not require a change of venue to 

Missoula County. 
The record indicates that the real estate deal for 

property located in Granite County was closed in Missoula 

County and that payments under the contract for deed were 

paid into an escrow account in Missoula. However, when the 

buyers filed this action, all payments under the contract had 

been made, and the sellers acknowledged this fact. The 

buyers' complaint deals solely with the issue of whether the 

house had a defective fireplace and sewer system. 

Sometime after taking possession of the house in 1981, 

the buyers allegedly experienced problems with the fireplace 

and sewer system. The pa.rties agreed that the fireplace 

needed some work, and arrangements were made for the escrow 

agent to set aside $2,850 of the purchase money to repair the 

fireplace. The buyers then ha-d the fireplace and. sewer 

system repaired but allege that their personal outlay for the 

repairs exceeded the $2,850 in the escrow account by 

$12,231.69. The buyers therefore seek $12,231.69 as damages. 

The sellers present essentially two issues on appeal. 

First, they argue that under the general statutory rule, 

venue is proper in Missoula County because that is where they 

reside. Sellers agree that suits on contracts may be brought 

in the county where the contract is to be performed, 

regardless of where defendant resides. Sellers argue, 

however, that the contract here was to be performed in 

Missoula County, not Granite County as alleged by buyers, and 

therefore venue remains proper in Missou1.a County. Second, 

sellers argue that the trial court abused its discretion in 

denying their request for a change of venue when sellers 

presented "uncontradicted" evidence that hardship and 

inconvenience would result to sellers a.nd their witnesses if 

the ca.se was tried in Granite County. 
Subject to the specific exceptions provided in sections 

25-2-101 through -107, MCA, the statutory rule in Montana is 

that a defendant is entitled to be sued in the county where 

he resides. That general rule is set out in section 

25-2-108, MCA, which provides that "In all other cases . . ." 

(not specificall-y dealt with in sections 25-2-101 through 

-107, MCA), the action shall be tried in the county where 

defendant resides. Section 25-2-101, MCA, however, provides 

a specific exception in suits on contracts. That section 

gives the plaintiff a choice to bring the action on the 

contract in the county where the contract was to be 

performed, regardless of where defendant resides. Buyers in 

this case are entitled to try the case in Granite County if 

the contract in question was to be performed there. Payment 

of monies was only part of the performance. The gravamen of 

buyers' complaint is whether sellers have performed by 

delivering the property in Granite County defect-free. The 

issue has nothing to do with the payments in Missoula. 

We have held that where there is no clear expression on 

the face of the contract, the place of performance can be 

indicated by "necessary impli.cation." LaForest v. Ronald 

Leland and Company (1-977), 171 Mont. 518, 559 P.2d 1177. The 

real property in question is located in Granite County. 

Assuming, as alleged, that sellers were to perform by 

delivering the property defect-free, the fact that the 

property is located in Granite County necessarily implies 

that performance by delivery would take place in that county. 

Therefore, buyers are entitled under section 25-2-101, MCA, 

to bring this action in Granite County. 

Sellers also argue that under section 25-2-201(3), MCA, 

the trial court was required to grant their request for a 
change of venue to Missoula County because the 

"uncontradicted" evidence showed a trial in Granite County 

would inconvenience them and their witnesses. Sellers 

presented the testimony of seller, Wilbert Kraus, and 

affidavits of prospective witnesses to show that travel to 

and from Granite County would disrupt their work schedules 

and jeopardize their employment. However, the trial court 

has wide discretion under section 25-2-201(3), MCA, to 

determine whether the evidence warrants a change of venue. 

Being familiar with the geographic distances between the 

counties, the trial court here determined that sellers and 

their witnesses would not be greatly inconvenienced by trying 

the case in Granite County and refused to move the action to 

Missoula County. 

We believe the trial court was correct in determining 

that venue is proper in Granite County, despite the testimony 

of Kraus and the affidavits of defense witnesses, and the 

failure of the trial court to hear evidence from the buyers 

contesting the motion. Sellers ' evidence went 

"uncontradicted" because the trial court refused defendants' 

motion without hearing evidence from plaintiffs. Sel-lers 

were not prejudiced by the failure of the trial court to hear 

defendants' evidence contesting the motion. Further, in 

cases involving real property, the location of the property 

is an important factor in determining proper venue, and the 

trial court relied heavily on this fact. The complaint 

alleges breach of warranty to deliver defect-free real 

property in Granite County. The trier of fact must determine 

whether the property was in fact defective and may desire to 

visually inspect the property regarding repairs and 

modifications. Any visual inspection would have to be in 
Granite County and that fact militates against changing venue 

for purposes of the sellers' convenience. We hold that the 

trial court did not abuse its discretion in refusing to grant 

sellers' motion under section 25-2-201(3), MCA. 

We briefly comment on the trial court's denial of the 

sellers' motion without hearing evidence from the buyers who 

contested the motion for change of venue. While this 

procedure did not prejudice the buyers here, it is 

conceivable that an appeal where only part of the evidence is 

heard would require this Court to remand the case so that the 

other side could present their evidence. This procedure 

could well result in a double appeal on a preliminary 

question of a change of venue, and we therefore recommend 

that in the future all the evidence be presented before the 

trial court rules. 

The order of the trial court keeping venue in Granite 

County is affirmed. 

We Concur: 

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Chief Justvce