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 

Filed: ptTy 

! - is74 - 

Submitted on briefs: August 2, 1979 
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 express terms dealing with place of performance. The issue is 

thus whether Cascade County was intended to be the place of performance by necessary implication. In resolving the question, 

this Court may examine the contract, which is part of the pleadings 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: Plaintiff 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 transaction 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 commission 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 determination 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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