No. 92-144
IN THE SUPREME COURT OF THE STATE OF MONTANA
MISSOURI-STONE CO.!
a Montana corporation,
Plaintiff and Respondent,
BARBER SEED SERVICE, INC.,
a Montana corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Hubble, Christensen & Hubble, Stanford,
Montana
For Respondent:
Katherine M. Irigoin, Habedank, Cumming, Best &
Savage, Sidney, Montana
Submitted on Briefs: July 23, 1992
Decided: December 18, 1 9 9 2
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Barber Seed Service, Inc. appeals from an order of the Seventh
Judicial District, Richland County, denying its motion for change
of venue. We affirm.
The only issue on appeal is whether the District Court erred
in denying a motion for change of venue.
Appellant Barber Seed Service, Inc. (Barber) is a Montana
corporation engaged in the business of buying and selling farm
products; its principal place of business is in Fergus County,
Montana. Respondent Missouri-Stone Co. (Missouri-Stone) is a
Montana corporation engaged in the farming business, with its
principal place of business in Richland County, Montana. The
parties entered into a contract in March of 1991. Under the
contract, Barber was to furnish squash seeds to Missouri-Stone.
Missouri-Stone was to plant, grow, harvest, collect, pack and store
the squash until called for delivery by Barber; it was then to
deliver the squash to Barber. The contract price was 8% cents per
pound of squash. No place of delivery was specified. Missouri-
Stone ultimately delivered squash to Barber's packing and grading
plant in Billings, Montana.
Missouri-Stone brought an action in the Seventh Judicial
District Court, Richland County, alleging that Barber had failed to
pay it in accordance with the parties' contract. Barber filed a
motion for change of venue to Fergus County, its principal place of
business. The District Court denied the motion in orders dated
January 22, 1992, and February 20, 1992, and this appeal followed.
2
id the ~istrictCourt err in denying Barber's motion for
change of venue?
The District Court noted that the contract did not specify the
place of performance and determined that the contract contained Ivan
element of personal service1! whereby Missouri-Stone undertook
specifically to grow, harvest and store the crop. The court
considered all of the obligations of the parties, determined under
25-2-121(l) (b) (ii), MCA, that the principal activity of the
contract occurred in Richland County and concluded that venue was
proper in that county.
Montana's venue statute for contract actions is 5 25-2-121,
MCA. It provides generally that venue for contract actions is
proper in either the county in which the defendant resides or the
county in which the contract is to be performed. Section 25-2-
121(1), MCA. Where no county is named as the place of performance
of the contract, venue is proper in Itthe county in which, by
necessary implication from the terms of the contract, considering
all of the obligations of all parties at the time of its execution,
the principal activity was to take place." Section 25-2-
1 2 1 1 (b)( i , M A . Subsections (a) through (d) of § 25-2-121(2),
MCA, provide statutory venue determinations for certain contracts
which do not specify a place of performance.
Barber contends that Fergus County and Yellowstone County are
the only proper venues for this action. Fergus County is the
county in which Barber resides under 5 25-2-121(1) (a), MCA. Barber
argues that the contract at issue is one for the sale of goods
pursuant to 5 25-2-121(2) (a), MCA, and, therefore, that the proper
venue under 25-2-121(1)(b), MCA, is Yellowstone County--the
county where possession of the goods was delivered. Thus,
according to Barber, since the action was filed in an "improper"
county, the court erred under 5 25-2-201(1), MCA, in denying the
motion for change of venue to Fergus County. We disagree.
Resolution of this dispute rests on a straightforward reading
and application of Montana's contract venue statute. It is clear
that, at the option of a plaintiff in a contract action, venue is
proper in either the county in which the defendant resides or the
county in which the contract is to be performed. Section 25-2-
121(1), MCA. Therefore, it is clear that a proper venue for this
action is Fergus County. The dispute before us centers on the
place of performance. The parties agree that the contract does not
specify a place of performance and, as a result, that place must be
determined in accordance with 5 25-2-121, MCA. The only question
is whether § 25-2-121(2) (a), MCA, controls the determination, as
appellant asserts.
If the contract belongs to one of the classes set forth in
subsections (2)(a) through (d) of 5 25-2-121, MCA, proper venue is
determined by the statute itself. If, however, the contract does
not fall into one of those classes, it is "subject to analysis
under subsection (l)(b)(ii) [of 5 25-2-121, MCA] to establish
venue.If Mont. Code Ann. 5 25-2-121, Evidence Commission Recommen-
dations for Revisions Annot. (1991), p. 27.
It is true, as appellant asserts, that a sale of harvested
squash by Missouri-Stone to Barbcr is an element of the contract.
It is also true, as the District Court determined, that the
contract involves services. These two elements of the contract
coincide with subsections (2)(a) and (2) (b) of 5 25-2-121, MCA.
Thus, the contract does not fall into only one of the classes of
contracts set forth in 5 25-2-121(2), MCA, and the venue deter-
mination must be made pursuant to § 25-2-121(1)(b)(ii), MCA.
It is clear that most of the contract is to be performed in
Richland County. That is where the squash seeds provided by Barber
are planted, grown, harvested, stored and prepared for delivery by
Missouri-Stone. The place of delivery is not specified in the
contract but took place in Yellowstone County.
Schutz Foss Architects v. Campbell (1990), 243 Mont. 194, 793
P.2d 821, involved a contract for architectural services for the
construction of a medical clinic. The architectural firm was
located in Yellowstane County. The building was to be constructed
in Broadwater County and the contract required the architect to
visit the site during construction. As in the case before us, the
contract did not specify a place of performance; the defendant
urged that the contract was a construction contract under
subsection (d) of 3 25-2-121(2), MCA, and, therefore, that venue
was where the construction was to occur. We determined that the
contract was one for services to be performed principally at the
offices of the architectural firm in Yeflowstone County and
concluded that the district court did not abuse its discretion in
denying the motion for change of venue.
We reach a similar result here. The contract between
~issouri-Stoneand Barber does include a sale of goods: it is also,
and primarily, a contract for services. Thus, 5 25-2-121(2), MCA,
is not applicable. The District Court did not err in concluding
under 5 25-2-121(1) (b) (ii), MCA, that the principal activity of the
contract--the planting, growing, harvesting and storing of the
squash--occurred in Richland County and, therefore, that ~ichland
County is a proper venue for the contract action.
Affirmed.
We Concur:
ices
December 18, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
James A. Hubble
Christensen & Hubble
P.O. Box 556
Stanford, MT 59479
Katherine M. Irigoin
Habedank, Cumming, Best & Savage
P.O. Box 1250
Sidney, MT 59270
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA