delivered the opinion of the court.
This proceeding is an application for the writ of supervisory control. Relator is the defendant in the action of Equity Co-operative Association v. Western Accident & Indemnity Company, a Corporation, which was brought and is pending in the district court of Richland county. The relief sought is the annulment of an order of respondents’ court and judge denying the defendant’s demand for a change of venue from Richland county to Lewis and Clark county, and a direction to respondents to enter an order changing the place of trial to Lewis and Clark county.
The sole ultimate question involved is: Was the contract upon which'the action is founded to be performed in Richland county or in Lewis and Clark county? If it was to be performed in
The petition in support of the application for the writ exhibits, in substance, these facts: The complaint in the action states that the plaintiff is and at all the times mentioned therein has been a corporation of Montana and engaged in business at Enid, Richland county; that the defendant — relator in this proceeding — at all such times has been and now is a corporation of Montana engaged in the business of bonding and indemnifying against loss, with its principal office and place of business at Helena, Montana; that the defendant, therein called the surety, made a contract with the plaintiff, therein called the employer, by which it covenanted that if the plaintiff should suffer pecuniary loss by certain wrongful acts on the part of an employee named, the defendant would pay the plaintiff such loss not in excess of $3,000, — “Provided, however; * * * 2. That within ten days after the discovery of any loss, the employer shall have delivered notice thereof to the surety, at its home office in Helena, Montana. 3. That within ninety days after the discovery of such loss, the employer shall have delivered to the surety, at its home office in Helena, Montana, written claim stating the items and the dates of the losses, é. That no suit, action or proceeding shall be brought against the surety by the employer within two months after the delivery of such statement of claim, * * * ”; that during the life of the contract the plaintiff suffered such loss in the sum of $10,263.-35; that plaintiff has complied with all the requirements and conditions of the contract on its part to be performed; and that none of the provisions of the contract has been altered or waived by the parties. Summons was served upon defendant at its home office and place of residence at Helena, in Lewis and Clark county. Defendant made timely demand for an order changing the place of trial from Richland county to Lewis and Clark county, basing it upon the papers and pleadings in the action and two affidavits, the latter averring, among other things not
Upon the showing thus made, relator contends that under the provisions of section 6504 of the Revised Codes, as interpreted by this court in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030, the demand for change of venue should have been granted. It is argued that the contract was to be performed in Lewis and Clark county. The case cited is to the effect that an action upon a contract, whether it be express or implied, or in part express and in part implied, must, upon demand of the defendant, be tried in the
1. Relator insists that the contract upon its face shows that [2] the payment to the plaintiff for which the defendant covenanted must, when due, be made at Lewis and Clark county, pointing to the admitted facts that the defendant’s home office, as well as its principal place of business, always has been and is in that county, that the contract was made and delivered there, and that both the notice and claim of loss are required to be made there, and also to the provisos. But these facts as to residence and place of business do not of themselves show, or raise a presumption, that it was the intention to perform the contract by payment in that county. Nor do the provisos, as a whole, evidence such intention. They are for the benefit of the defendant and for its protection, and have nothing whatever to do with appointing a place at which payment shall be made in event of loss. Compliance by the plaintiff with the requirements of provisos 2 and 3 is a condition necessary to the creation of any actual liability or debt, though the relation of debtor and creditor 'may be said to have had a potential existence at least from the day of the loss, if not, indeed, from the delivery of the contract; yet such compliance did not make the debt or liability due or then instantly payable, for proviso 4 postpones the accrual of any right of action by the plaintiff for the period of two months after it shall have complied with the stipulations of provisos 2 and 3, thereby granting to the defendant a space
Broadly speaking, the rule is that if no place for payment be [1] specified or agreed upon, the debtor must, in order to perform his obligation, pay or tender payment to the creditor where the latter may then reside or conduct business or be found. Such was the holding in State ex rel. Coburn v. District Court, 41 Mont. 84, 86, 108 Pac. 144. The statute law of this state on that subject, appearing in sections 4932 and 4933 of the Revised Codes, states the rule more comprehensively and with greater particularity: “See. 4932. An offer of performance must be made to the creditor * * * , if such creditor * * is present at the place where the' offer may be made; and, if not, wherever the creditor may be found. See. 4933. In the absence of an express provision to the contrary, an offer of performance may be made, at the' option of the debtor: 1. At any place appointed by the creditor; or, 2. Wherever the person to whom the offer ought to be made can be found; or, 3. If such person cannot, with reasonable diligence, be found within the state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state.”
The doctrine rests upon the presumption or implication of law that the intention of the parties was that payment should be made to the creditor at his place of business, or residence, or wherever found, it being the duty of the debtor to seek the creditor. The implication is imported by the law into, and is part of, the contract. Said this court in the Coburn Case, supra: “If at the time this contract of employment was entered into there was not any place of payment mentioned, the parties-will be held to have intended that the contract should be construed in view of the rule of law above, and what was actually intended becomes as much part of the agreement as any express provision, if there is not anything in the contract inconsistent
As we have already said, the contract does not designate any specific place for payment, but does provide by implication of law that such payment shall be made to the plaintiff at its place of business or residence or wherever it may be found, and although such place is not specifically designated, it can be made certain by evidence. "When such place shall have been ascertained, the county where the contract was to be performed will thereby be designated as such place, for that is certain which can be made certain.
2. Relator’s next contention is that the showing on the demand for change of venue was sufficient to prove that payment was to be made at Lewis and Clark county. For several reasons this is untenable. It is to be observed that the demand for change of venue was based upon the papers and pleadings in the action, as well as upon the two affidavits. Now, the complaint, which was duly verified and therefore also an affidavit, states that at the time the action was commenced the plaintiff was a corporation of Montana engaged in business at Enid, in [la] Richland county. The residence of the plaintiff at that time fixed the rights of the parties in respect of the place of trial in so far as residence was the controlling element or factor; the plaintiff’s residence at any subsequent time could not be of [3] moment. "When the question arises as to whether or not
Since in legal effect the contract stipulates that payment was to be made at the place of residence or business of the plaintiff, or wherever it might be found within the state, the complaint of itself, or it and the affidavit, thus identified Richland county as that place, unless the contrary was made to appear.
The burden was, of course, upon the defendant to show that [4] a place other than the residence of the plaintiff was agreed upon as the place where payment should be made (King v. Buckmcm, 20 N. J. Eq. 316). The affidavits which were [5] intended to prove this supposed fact do not deny that the plaintiff’s residence was in Richland county when the action was begun, but contain the statements, as has been noted, that the contract was to be performed by making payment at its home office in Lewis and Clark county. This bald assertion seems, in view of its context, to be merely an expression of opinion by the affiants as to the legal construction or interpretation which should be placed upon the contract. In any event, however, such statements are sheer legal conclusions and were with
The respondents committed no error in denying the demand for a change of venue.; The order to show cause is discharged, the application denied, and the proceeding dismissed.
Dismissed.