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, Judgepresiding. Counsel of Record: For Appellants: Small,Hatch and Doubek, Helena, Montana For Respondent: Jardine, Stephenson,Blewett and Weaver, Great Falls, Montana

Filed: ptTy ! - 

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## - Submitted on briefs: August 2, 1979Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendantsappeal from an order of the Cascade County District Courtdenying 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 realtorperformed his part of the bargain; and that he is entitled to a commission in the amount of $80,000. Attached to and incorporatedwith the complaint are two written agreements signed by defendants. Each provides: "Forvaluable consideration I/we agree to sell and convey to the Purchaser the above described property on the terms and conditionshereinabove stated and agree to pay to the above named agent a commission amounting to 5percent of the above mentioned selling price for servicesrendered 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 theparties' affidavits, counteraffidavits and briefs, the District Court properly denied themotion. The general rule of venue is that "civilactions

# .. . shallbe 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, "Actionsupon contractsmay be tried in the county in which the contractwas to be performed 

# .. ." Section 25-2-101, MCA. In order for the performance exception to apply "theplace of performance must be evident either by (a) the express terms of

J the contract,or (b)by necessary implication that a county other thanthat of defendant'sresidence is intended to be the county of performance." Hopkinsv. ScottieHomes, 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),144Mont. 149,

The contract for payment of commission contains no express terms dealing with place of performance. The issue is thuswhether Cascade County was intended to be the place of performance by necessary implication. In resolving the question, this Courtmay examine the contract, which ispart of the pleadings herein, aswell as theparties'affidavits. Hopkins v. Scottie Homes, supra, Nont. at 

### , 591P.2d at 232, 36 St.Rep. at 410;412; Statev. District Court (1918), 54 Mont. 602, 608, 172 P.

The undisputed factswhich this Court must accept as true, Hopkins v. Scottie Homes, supra,citing Fraser v. Clark (1954), 128Mont. 160, 172-173, 273 P.2d 105, 112,are as follows: Plaintiff realtor isa 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 isbut onedisputed fact. Plaintiff stated: "That it was understood and agreed that the commission to be paid to your affiant under the terms of the originalReceipt and Agreement to Sell and Purchaseand the subsequent agreementwould 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 languageof Brown v. First Federal Sav. and L. Ass'n of Great Falls (1964), 394 P.2d at 1021, is appropriate. "Sincethe facts of the affidavit are contradicted, they cannot be taken as truewithin the rule ofthe 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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