Armon v. Stewart

No. 12424 I N THE SUPREME COURT OF THE STATE O MONTANA F 1973 H R L E. ARMON, AOD P l a i n t i f f and Respondent, -vs - DrnTAYN L. STEWART, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable Truman G. Bradford, Judge p r e s i d i n g , Counsel of Record: F o r Appellant : Dola N. Wilson, Jr. argued, Great F a l l s , Montana. For Respondent : Swanberg, Koby, Swanberg & Matteucci, Great F a l l s , Montana. Gorham Swanberg argued, Great F a l l s , Montana. Submitted: May 3 0 , 1973 Decided : - J@#' 8 Im JUW - 8 1973 Filed : Chief J u s t i c e James T. Harrison d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal by defendant Dewayn L. Stewart from t h e d e n i a l of h i s motion f o r change of venue entered i n the d i s t r i c t c o u r t of Cascade County on September 27, 1972. S u i t was brought by Harold E. Armon a g a i n s t Stewart i n Cascade County on August 17, 1972. The s u b j e c t matter of t h e s u i t was a " c a t t l e s h a r e s agreement'' a l l e g e d l y breached by Stewart. On September 6 , 1972, a motion f o r change of venue from Cascade County t o Toole County was f i l e d , I n h i s a f f i d a v i t accompanying t h e motion, Stewart s t a t e d : "That t h e convenience of witnesses and t h e ends of j u s t i c e would be promoted and b e s t served by changing t h e p l a c e of t r i a l from t h e County of Cascade t o t h e County of Toole, wherein defendant r e s i d e s and conducts h i s businesses. I I I n response, p l a i n t i f f Armon f i l e d an a f f i d a v i t i n opposi- t i o n which s t a t e d i n p e r t i n e n t p a r t : h hat a t t h e time s a i d agreement was signed i t was t h e i n t e n t i o n of a l l p a r t i e s t h a t t h e l e a s e would be performed i n e i t h e r Cascade County, Montana, o r Chouteau County, Montana, That i n f a c t , t h e l e a s e was performed i n Cascade County, Montana, i n t h a t t h e c a t t l e mentioned i n s a i d l e a s e w e r e t r a n s p o r t e d t o a ranch owned by Dola Wilson, which I was l e a s i n g n e a r Fort Shaw, Montana, a town i n Cascade County, and a f f i a n t performed t h e agree- ment and wintered t h e c a t t l e on s a i d property i n Cascade County, Montana. I I The " c a t t l e s h a r e s agreement" provided t h e expenses of trucking t h e c a t t l e from s t e w a r t ' s ranch t o Armon's ranch were t o be shared e q u a l l y and a l s o t h a t t h e c a t t l e were n o t t o be removed from Cas- cade o r Chouteau c o u n t i e s without s t e w a r t ' s consent, O t h e b a s i s of t h e a l l e g a t i o n s i n t h e complaint a.nd t h e n a f f i d a v i t s , t h e c o u r t denied t h e motion, s t a t i n g i n i t s order: It* ** It appears t o t h e c o u r t t h a t t h e c o n t r a c t was t o be performed on t h e p l a i n t i f f ' s property; t h a t t h e a f f i d a v i t on f i l e shows t h a t t h e p l a i n - t i f f ' s property was i n Cascade County, and t h a t t h e c o n t r a c t was performed t h e r e . It f u r t h e r appears t o t h e c o u r t t h a t most of t h e witnesses t o appear a t t h e t r i a l w i l l be r e s i d e n t s of Cascade County, 11 The issue here is whether it was error for the district court to deny the change of venue. Defendant Stewart maintains that under section 93-2904, R.C,M. 1947, the proper venue is in Toole County, the residence of defendant. Section 93-2904, R,C.M. 1947, reads in part: 'n all other cases the action shall be tried in " the county in which the defendants, or any of them, may reside at the commencement of the action * * , Actions upon contracts may be tried in the county in which the contract was to be performed * * *," Stewart argues that the last sentence of section 93-2904 is not applicable to this case because of this Court's holding in McGregor v, Svare, 151 Mont. 520, 524, 445 P,2d 571, There we held the test for determining whether a contract action should be tried in a county other than the county of the defendant's residence to be: 1' 1 To maintain suit in another county than that of defendant's residence lai in tiff must clearlv show the facts relied on to bring the case within one of the exceptions to the rule and the contract must state so clearly that it is to be performed in another county than that of defendant's resi- dence that no other fair construction can be placed upon it. "' Stewart is in error in his assertion that Armon did not meet this test. The allegations in the complaint and those contained in Armon's affidavit clearly show that the contract was to be per- formed either in Chouteau County or Cascade County and the contract until the time of the alleged breach was performed in Cascade County. There are no facts contained in Stewart's affidavit to contradict Armon's statements. The district court and this Court must accept the facts in those affidavits as being true. Cormier Bros., Inc, V, Willcutt, 154 Mont. 297, 299, 462 P.2d 889; Fraser v. Clark, 128 Mont, 160, 273 P,2d 105. The district court did not commit error in denying the motion for change of venue, Its ruling comes squarely within the holding of this Court in Cormier Bros. where we held: "'This performance exception, however, applies only to such actions as are based upon contracts which p l a i n l y show, e i t h e r (a) by t h e i r express t e r m s , o r (b) by necessary implication therefrom, t h a t t h e c o n t r a c t i n g p a r t i e s , a t t h e time of c o n t r a c t i n g , d i d mutually agree upon a p a r t i c u l a r county, o t h e r than t h a t of defendant's residence, wherein they intended t h a t t h e i r c o n t r a c t was t o be performed, "' O t h e b a s i s of t h e information contained i n t h e a f f i d a v i t n and t h e c o n t r a c t which was made a p a r t of t h e complaint, t h e d i s t r i c t c o u r t could determine by necessary i m p l i c a t i o n t h a t t h e p a r t i e s mutually agreed t o perform t h e c o n t r a c t i n Cascade County o r Chouteau County. Because t h e c o n t r a c t was t o be performed i n Cascade County and t h e p l a i n t i f f chose t h a t county t o b r i n g s u i t , have Stewart does n o t l t h e r i g h t t o remove i t . A s t h i s Court s t a t e d i n Cormier Bros,, c i t i n g from Love v. Mon-0-Co O i l Corp., 133 Mont. 56, 61, 319 P.2d 1056: "'* * * t h e s t a t u t e means t h a t e i t h e r t h e county of defendant's residence, o r the county where t h e con- t r a c t was t o be performed, i s t h e proper county f o r t h e t r i a l of t h e a c t i o n , and i f t h e p l a i n t i f f chooses e i t h e r of those c o u n t i e s , defendant may n o t have i t removed * * *. "' For t h e foregoing reasons, t h e judgment of t h e affirmed . n // Chief ~ u s t i 6 e Concur : ~ s s h c i a t e ustices J