I dissent. I am of the opinion that the prior decisions of this court, State ex rel. Interstate Lumber Co. v. DistrictCourt, 54 Mont. 602, 172 P. 1030; State ex rel. Coburn v.District Court, 41 Mont. 84, 108 P. 144; State ex rel.Western Accident Indemnity Co. v. District Court, 55 Mont. 330,176 P. 613, and Silver v. Morin, 74 Mont. 398,240 P. 825, correctly interpret that portion of section 9096, Revised Codes, relating to venue now before us. That portion simply states: "Actions upon contracts may be tried in the county in which the contract was to be performed, * * *." As construed by this court in the decisions above cited, this simple language has been held to require that upon proper application the cause be tried in the county where performance of the contract was to be had, applying the usual statutory provisions to determine place of performance if the contract is silent as to the place where performance is to occur. Further the court has held that where the application is made but one proper place for trial exists and that is in the county of performance. It seems to me that this interpretation of the language is entirely reasonable. The majority substitutes the rule prevailing in Colorado where the same statutory provision exists. Under that rule this provision of section 9096 has no application where the contract does not specifically provide the place for performance or where the place for performance is not necessarily implied from the terms of the contract. Further, the majority states that even though section 9096 does apply to the contract, yet there are other places for trial and no party may demand trial in the place where the contract is to be performed so as to exclude trial in the county where the defendant resides or where the plaintiff resides and the defendant may be found.
I cannot find the confusion that disturbs the majority under the decisions of this court up to this date. Under the past decisions, *Page 493 where the contract is silent as to the place for performance or where the place for performance cannot be necessarily implied from the general language of the contract, the ordinary tests for determination of place for performance were applied, and those tests are statutory and easy of determination. It seems to me that if the majority view is to be adopted it would have to be limited under the terms of the statute to contracts where there was an express provision for the place for performance and to go further and suggest that the place for performance can be determined by necessary implication is not warranted and clearly when you apply the latter test of necessary implication might it not be said that this court has already applied that test when it has held as it has that it must necessarily be implied that where the contract is silent as to the place for performance the parties necessarily contracted with the statutes in mind and the place for performance was, in effect, placed in the contract for this reason?
Much reliance is placed on section 33 et seq. of 67 C.J. There are general statements therein contained to the effect that the section in the venue statutes here under consideration has no application to contracts which are silent as to the particular county in which the obligation is to be performed. The writer cites cases from Illinois, Iowa and Texas in support of this general proposition and the Montana decisions are not cited. The statutes in those three states, as well as in the state of Utah, are entirely different from ours. The Iowa statute provides: "When, by its terms, the written contract is to be performed in any particular place * * *", (Code 1939, sec. 11040), then trial may be had in the place of performance. The Illinois case cited in the footnote of 67 C.J. sec. 33, was decided at a time when the Illinois statute provided that trial may be had "where the contract may have specifically been made payable." (See Chapter 83, sec. 2, Revised Laws of Illinois 1845.) The Texas statute provides: "If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, then trial may be had in the *Page 494 county of performance. (Vernon's Ann. Civ. St. art. 1995, subd. 5). The Utah statute is: "When the defendant has contracted in writing to perform an obligation in a particular county of the state * * *" (Utah Code 1943, 104-4-4,) trial may be had in the county where the obligation is to be performed. It is upon these statutes that the writer relies in his general statements in 67 C.J. and it is obvious that the statements are not authority in the construction of our statutes. By the terms of these statutes, the contract itself must contain in its body in writing the designation of the place in which performance is to be had. Our statute, of course, is not comparable in any way with these statutes. Under our provisions the contract need not be in writing. Our legislature contented itself with the mere statement that a proper place for trial is where the contract "was to be performed." Even in the four states whose statutes have been quoted from above the court has gone a long way to relax the legislative rule, as in all of those states the court has held that even though there is no express provision in the body of the written contract as to place for trial, the court may decide that by necessary implication one particular place was intended.
As has been indicated above, Colorado with exactly the same statute has held as the majority does here. The leading Colorado case and the one upon which all the later cases are based, isBrewer v. Gordon, 27 Colo. 111, 59 P. 404, 83 Am. St. Rep. 45, decided in 1899. The suit in that case was on an indemnity bond. It was held that suit must be brought in the county where the defendant, the indemnity company, was, rather than the county where the indemnity was to be paid. We had exactly the same question before us in the case of State ex rel. Western Accident Indemnity Co. v. District Court, supra. Peculiarly enough, the county involved in that case was also Richland county, and we held directly, some twenty years after the Colorado case, that Richland county, the county where the bond was to be paid, was the proper place for trial. In reaching its conclusion that the contract itself must provide the place for performance before the county of performance should be the proper *Page 495 place for trial, the Colorado court, in the Brewer case, relied on cases from Texas and Iowa and the entire bases of the decision were these prior cases from these two states. No discussion of the Colorado statutes is had in the Brewer case and the sole bases for the decision are these prior Texas and Iowa ones. In no case since Brewer v. Gordon has the Colorado court distinguished between their statute and the statutes of other states and all of the later cases are based entirely on Brewer v. Gordon and in none of the later Colorado cases has there been any discussion of the rationale of the court's conclusion, that the exception of the venue statute does not apply when the contract is silent as to the place of performance. That the Colorado rule has not resulted in entire satisfaction in that jurisdiction is apparent by the many many cases followingBrewer v. Gordon. A few of those cases are: People ex rel. v. District Court, 66 Colo. 330, 182 P. 7; People ex rel.Tripp v. Fremont County Court, 72 Colo. 395, 211 P. 102;Lamar Alfalfa Milling Co. v. Bishop, 80 Colo. 369,250 P. 689. As recently as 1934, the matter was again brought before that court in Kimberlin v. Rutliff, 93 Colo. 99,23 P.2d 583.
That the majority has some doubt as to the correctness of its position in overruling the prior decisions of this court is indicated by the fact that it discusses at some length the question of whether or not it must be implied from the nature of the agreement and understanding that Missoula county was the place for performance of the contract. If that were the case there would be no necessity for discussing the earlier Montana decisions as they recognize the fact that if the contract itself either expressly or by necessary implication provides a place for performance, then recourse may not be had to the tender statute or any other statute, as they apply only in the absence of a contract provision fixing the place for performance. I am not in agreement with what the majority says as to this matter. The necessary implication from the whole transaction if there is one, is that payment could be made to the parents wherever they might be. A pertinent question would be, if this defendant were *Page 496 to pay up the arrears under his contract today, and so discharge his obligation, where in Missoula county and to whom would he make that payment? The obvious answer is that there is nothing in the contract, either expressly or by implication regarding any place or person in Missoula county where he could make such a payment and the only place that he could make an effectual tender is that provided by the statute. The majority carves out exceptions to its own rule, as for example it says that in the case of an over-the-counter sale of goods the obvious place for performance and the one which must necessarily, though there is no written contract and nothing from which a necessary implication can be drawn, be implied so far as payment of the money is concerned, is in the place of business of the seller. To my mind this is mere judicial legislation. I can find no Colorado case making such an exception nor can I find any in the other states from whose statutes I have quoted in this dissent.
I think the trial court's order should be affirmed.