No. 83-153 INTHE SUPREME COURT OF THE STATE OFMONTANA 1983

DAVID J. LETFORD AND DEBORAH R. LETFORD, Plaintiffsand Respondents,

-VSWILBERT KRAUS AND VIVIAN L. KPAUS, Defendantsand Appellants.

APPEAL FROM: DistrictCourtof theThirdJudicialDistrict, Inand forthe Countyof Granite, TheHonorableRobertJ. Boyd, Judgepresiding.

COUNSEL OF RECORD: ForAppellants: RexPalmer, Missoula, Plontana

ForRespondents: J. AllenBradshaw, Philipsburg, Yontana

Filed: Submittedon Briefs: July 21, 1983 Decided: November 15, 1983 

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-- ClerkMr. 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 affirmand 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 residentsof 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 contractwas 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 courtproperly found the contract

was to be performed in Granite County,which, under section 25-2-101,MCA, defeats the rightof 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,allpayments under the contracthad been made, and the sellers acknowledged this fact. The buyers' complaint deals solelywith the issue of whether the househad adefective fireplaceand 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 arrangementswere made for the escrow agent to setaside $2,850 of the purchase money to repair the fireplace. The buyers then ha-d the fireplace and. sewer systemrepaired but allege that theirpersonal outlay for the repairs exceeded the $2,850 in the escrow account by $12,231.69. The buyers therefore seek $12,231.69 asdamages. The sellers present essentially two issues on appeal. First, they argue that under the general statutory rule,

venue is proper inMissoula County because that iswhere they reside. Sellers agree that suits on contractsmay 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, notGranite County as allegedby 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 inconveniencewould result to sellersa.ndtheir witnesses if the ca.sewas tried inGranite County.Subject to the specific exceptions provided in sections 25-2-101 through -107,MCA, the statutory rule inMontana 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

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# ." (not specificall-ydealt 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 questionwas 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 issuehas nothing to dowith the payments inMissoula. 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),171Mont. 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 thatperformance by deliverywould take place in that county. Therefore, buyers are entitled under section 25-2-101, MCA, to bring this action in GraniteCounty. Sellers also argue that under section 25-2-201(3),MCA, the trial court was required to grant their request for achange 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 notbe greatly inconveniencedby trying the case in Granite County and refused tomove the action to Missoula County. We believe the trial court was correct in determining that venue is proper inGraniteCounty,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 notprejudiced by the failure of the trial court tohear 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 GraniteCounty. The trier of factmust 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 factmilitates againstchanging 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 courtrules. The order of the trial court keeping venue in Granite County is affirmed.

We Concur: 

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