                            No. 81-255
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1981


RUSSELL WOOLCOCK, d/b/a
SPRING MOUNTAIN RANCH,

                          Plaintiff and Appellant,


BEARTOOTH RANCH, a dissolved Montana
Corporation, BEARTOOTH RANCH, a partnership;
VERNON SANDERS, GEORGE ELLIS, JOHN DOE I,
JOHN DOE 11, et al.,
                          Defendants and Respondents.


Appeal from:   District Court of the Eighth Judicial District,
               In and for the County of Cascade.
               Honorable John McCarvel, Judge presiding.
Counsel of Record:
    For Appellant:
        Jardine, Stephenson, Blewett     &   Weaver, Great Falls,
         Montana
    For Respondents:
        Anderson, Brown, Gerbase, Cebull       &   Jones, Billings,
         Montana


                            Submitted on briefs: September 3, 1981
                                             Decided:     &C 1 9




                     . a/PA*
                             '   Clerk
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n of t h e C o u r t .

           T h i s i s an a p p e a l f r o m a r u l i n g i n t h e D i s t r i c t C o u r t
o f t h e E i g h t h J u d i c i a l D i s t r i c t o f t h e S t a t e o f Montana,            in
and     for      the     County      of     Cascade,       where      the     court      granted
d e f e n d a n t s ' m o t i o n f o r c h a n g e o f v e n u e and moved t h e a c t i o n

from C a s c a d e County t o S t i l l w a t e r C o u n t y .

           Plaintiff           and a p p e l l a n t ,     R u s s e l l Woolcock,          d/b/a
S p r i n g Mountain Ranch,               f i l e d a c o m p l a i n t i n Cascade County
s e e k i n g b o t h compensatory and p u n i t i v e                damamges.           In    his

complaint,             Woolcock a l l e g e d t h a t t h e d e f e n d a n t s           inten-
tionally,         f a l s e l y a n d f r a u d u l e n t l y made r e p r e s e n t a t i o n s

regarding         a     bull     named      Negotiator           510L.        The     complaint
f u r t h e r a l l e g e s t h a t Woolcock r e l i e d on t h e s e m i s r e p r e s e n t a -

tions      and     purchased         the     bull     at    an    auction       held      by    the
B e a r t o o t h Ranch on O c t o b e r 1 0 and 11, 1 9 7 9 .

           The d e f e n d a n t s moved f o r a c h a n g e o f p l a c e o f t r i a l
from Cascade             County      to     Stillwater        County.          The     District
Court      granted         the    motion       on   the     grounds        that     Stillwater

C o u n t y was t h e r e s i d e n c e and p r i n c i p a l p l a c e o f b u s i n e s s o f

t h e d e f e n d a n t s , was t h e p l a c e of t h e c o n t r a c t ' s p e r f o r m a n c e ,
and was t h e p l a c e o f           t h e occurrence of            the     alleged t o r t s .
P l a i n t i f f and a p p e l l a n t a p p e a l s t h e o r d e r c h a n g i n g t h e p l a c e
of t r i a l and p r e s e n t s t h e f o l l o w i n g i s s u e s :

           1.         Does t h e c o m p l a i n t s t a t e a c o n t r a c t c l a i m o r a
t o r t claim?
           2.      Is S t i l l w a t e r   County t h e p r o p e r p l a c e f o r t r i a l
i f the action is i n t o r t ?
            3.    Was s u f f i c i e n t e v i d e n c e p r e s e n t e d t o t h e D i s t r i c t
C o u r t t o s u p p o r t t h e change of venue motion?
           Appellant contends t h a t h i s a c t i o n is i n t o r t ,                       and,

consequently,           the     contract        venue      statute        is    inapplicable.
A p p e l l a n t s u p p o r t s t h i s c o n t e n t i o n by r e f e r r i n g t o s p e c i f i c

language used i n t h e complaint, such a s :                           ".     . .   the repre-
sentations          alleged        in    paragraph          I11     hereof       were       inten-

tionally,        f a l s e l y and f r a u d u l e n t l y made f o r t h e p u r p o s e o f
causing       plaintiff         and     the     public       to    believe        . . .        that

N e g o t i a t o r 510L was t h e s o l e and o n l y p r o g e n y of J u s t a m e r e
RN890C      . . ." A c c o r d i n g     t o a p p e l l a n t , t h i s language, coupled

w i t h t h e f a c t t h a t t h e r e h a s b e e n no a c t i o n t o r e s c i n d t h e
c o n t r a c t , i s s u f f i c i e n t t o support an a c t i o n i n t o r t .

            I n S t a t e ex r e l . Dimler v. D i s t r i c t C o u r t ( 1 9 7 6 ) , 1 7 0
Mont. 7 7 , 550 P.2d 9 1 7 , t h i s C o u r t s t a t e d :
            ". . .        Here, p l a i n t i f f s chose t o a f f i r m t h e
           c o n t r a c t and s u e f o r f r a u d u l e n t r e p r e s e n t a -
           t i o n s preceding the contract, representations
           w h i c h p l a i n t i f f s a l l e g e d i n d u c e d them t o s i g n
           t h e c o n t r a c t f o r p u r c h a s e of d e f e n d a n t s '
           home.

           "That such course of a c t i o n is p e r m i s s i b l e
           and i n f a c t i s n o t a c o n t r a c t a c t i o n h a s l o n g
           been r e c o g n i z e d i n t h e law.        37 A m . J u r . 2 d I
           F r a u d and D e c e i t , S 3 3 2 , p . 4 3 9 , s t a t e s i n
           pertinent part:
           " ' A t r a d i t i o n a l remedy o r d i n a r i l y a v a i l a b l e
           t o a p e r s o n who h a s p a r t e d w i t h s o m e t h i n g o f
           value a s a r e s u l t of a contract or trans-
           a c t i o n i n d u c e d by f r a u d i s t h a t h e may r e t a i n
           w h a t h e h a s r e c e i v e d and b r i n g a n a c t i o n a t
           l a w t o r e c o v e r t h e damages s u s t a i n e d .       Thus,
           a p e r s o n who h a s b e e n i n j u r e d by t h e f r a u d o f
           a n o t h e r o r o t h e r s , by e i t h e r a p a r t y o r
           p a r t i e s t o a transaction or a t h i r d party or
           t h i r d p a r t i e s committing fraudulent a c t s
           involving or bringing about t h e n e g o t i a t i o n
           of a t r a n s a c t i o n , s u c h t r a n s a c t i o n u s u a l l y
           but not necessarily involving business or
           c o m m e r c i a l d e a l i n g s , may m a i n t a i n a n a c t i o n
           a t l a w i n t o r t t o r e c o v e r damages f o r t h e
           i n j u r y r e c e i v e d f r o m t h e f r a u d and d e c e i t
           p e r p e t r a t e d by s u c h o t h e r o r o t h e r s .        -
                                                                               The
           foundation of t h e a c t i o n is n o t c o n t r a c t , b u t
           tort.      ..          [Emphasis i n D i m l e r . ]

            ". . .      37 Am.Jur.2dr          F r a u d and D e c e i t , S 3 3 3 ,



                                               -3-
       p. 442, continues the discussion:
       "'In accordance with the right to bring an
       action for deceit generally, a buyer who has
       been induced by the fraud - the seller to
                                   of-
       purchase real or personal propert1 may ordi-
       narily maintain an action for, or in the
       nature of, deceit to recover damages result-
       ing from the fraud          . .
                                  .'    [Emphasis in
              .
       Dimler ]


      "Applying the authorities discussed to
      plaintiffs' allegations of misrepresentation
      on the part of defendants, these conclusions
      can be made as to plaintiffs' cause of action
      in the instant case:     The cause of action
      arises from representations which plaintiffs
      claim induced the execution of the contract,
      section 13-308, R.C.M. 1947. Such represen-
      tations necessarily contain an obligation to
      act in good faith. Such representations if
      knowingly false, as alleged, would be a
      'breach of an obligation' as contemplated by
      section 17-208.    Additionally, a cause of
      action for fraudulent inducement can be in
      tort and thus independent of the contract and
      therefore affirmance of the contract does not
      automatically preclude suit in tort for
      fraud. Since plaintiffs' cause of action for
      fraud is based in tort, not contract, section
      17-208, R.C.M. 1947, is not controlling and
      plaintiffs can properly pray for punitive
      damages." 550 P.2d at 920-921.
      Here, the appellant has also chosen to affirm the
contract    and   sue     for    fraudulent      misrepresentations.
Accordingly, the action is one in tort, and section 25-2-
102, MCA, applies.        That statute provides:             "Actions for
torts may   be    tried    in    the   county   where   the     tort   was
committed, subject, however, to the power of the court to
change the place of trial as provided in this code."
      Appellant contends the tort was continuous in nature
and that, therefore, according to section 25-2-102, IUICA,
Stillwater County is not the proper place for trial.
      The    general      rule   of    venue    has   been    reiterated
numerous times by this Court.            In Foley v. General Motors
Corporation (1972), 159 Mont. 469, 499 P.2d 774, 775-776, we
held:
          "Thus the general rule governing venue of
          civil actions is that the action shall be
          tried in the county in which the defendants
          or any one of them reside at the commencement
          of the action.


          "In order to maintain suit in another county
          than that of defendant's residence, plaintiff
          must clearly show facts relied upon to brinq
          the cause within one of the exce~tionsto the
                                                  A

          general rule. Hidden Hollow Ranch v. Collins,
          146 Mont. 321, 406 P.2d 365; Rapp v. Graham,
          145 Mont. 371, 401 P.2d 579."       (Emphasis
          added. )
Also, in Rapp v. Graham (1965), 145 Mont. 371, 373-374, 401
P.2d     579, 581, this Court emphasized              that, " [s]tatutory
provisions        creating     exceptions    to       the   general   rule
recognizing a defendant's privilege to be sued in his own
county will not be given a strained or doubtful construc-
tion."     From the authority cited above, it is apparent the
general rule of venue shall be applied unless a clear reason
for an exception appears.         In this case, a clear reason does
not appear.
          Appellant's contention that Stillwater County is not
the proper place for trial is unsupported by the facts--that
is, the defendants all resided in Stillwater County and they
were     served   notice     in Stillwater County.           Further, the
contract was entered into in Stillwater County, no place of
performance was mentioned in the contract, and payment upon
the contract was made in Stillwater County.                   These facts
illustrate every aspect of the transaction was initiated in
Stillwater County.
          It is clear from these facts that the entire action
culminated in Stillwater County.            The alleged misrepresen-
tations,      the   alleged    fraud   and   alleged    deceit    all
transpired, if at all, in Stillwater County.           The tort was
committed, if at all, in Stillwater County.              Even under
section 25-2-102, MCA, which is an exception to the general
rule of venue, appellant's contention that the continuous
nature of the tort makes Stillwater County an improper place
for trial does not stand up.
         First, the tort was committed, if at all, at the time
of the auction and sale in Stillwater County.          Second, since
section 25-2-102, MCA, is an exception to the general rule
of venue, it must be cautiously applied.        The Texas Supreme
Court, in Ryan Mortg. Investors v. Lehmann (Texas 1976), 544
S.W.2d   456, 459, reiterated the general rule and the manner
in which exceptions should apply when it recognized the rule
enunciated in Goodrich v. Superior Oil Co. (1951), 150 Tex.
159, 237 S.W.2d 969, 972, and stated:
         "The general rule of venue is, of course,
         that a defendant shall be sued in his own
         county, and however many and important the
         exceptions contained in the statute, an equal
         doubt between the exception and the rule is
         to be resolved in favor of the rule. Stated
         differently, the application of the excep-
         tion must clearly appear."
Finally, in Neely v. Steinbach (1967), 149 Mont. 119, 423
P.2d 584, 586, this Court emphasized that, "[glranting a
change of venue lies in the sound discretion of the District
Court, and     in the absence of manifest         abuse    of    this
discretion,    the decision of     the court below must stand.
Little v. Strobel, 136 Mont. 272, 346 P.2d 971."
         Appellant's   final contention is that the District
Court erred when it granted a change of venue because the
defendants    had   failed    to present pleadings or     competent
evidence to support their motion.
       This Court does not need      address this contention
because appellant failed to present this issue for review on
the trial court level.   Rules'8(c) and 12(b), t4.R.Civ.P.   In
Chadwick v. Giberson (1980),   - Mont.        ,   618 P.2d 1213,
1215, 37 St.Rep. 1523, 1726, we held:        "However, it is a
well-settled rule of law that alleged error as to issues not
raised in trial court will not be considered on appeal."
See also, State v. Armstrong (1977), 172 Mont. 296, 562 P.2d
1129; Spencer v. Robertson (1968), 151 Mont. 507, 445 P.2d
48; Clark v. Worrall (1965), 146 Mont. 374, 406 P.2d 822.
       The order of the District Court is affirmed.




                                   Justice

We Concur:


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          LUeeQ
    Chief Justice
