                                No. 8 8 - 2 1 5
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1988




ROBERT HURLY ,
                 Plaintiff and Respondent,
         -vs-
DEAN STUDER, RALPH STUDER,
and LARRY CHOUINARD,

                 Defendants and Appellants.




APPEAL FROM:     District Court of the Fourteenth Judicial District,
                 In and for the County of Valley,
                 The Honorable Leonard H. Langen, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                 Ward Swanser; Moulton, Bellingham, Longo    &   Mather,
                 Billings, Montana
         For Respondent :
                 Robert Hurly, Glasgow, Montana



                                     Submitted on Briefs:   Aug. 11, 1 9 8 8
                                        Decided:   September 2 2, 1988

Filed:    Tg 2 2
           E        1988'



                                    Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

    Mr. Hurly brought this suit to recover a balance due on
his fees for negotiation services rendered for the defen-
dants.    The District Court for the Seventeenth Judicial
District, Valley County, denied defendants' motion for chanqe
of venue. We remand for reconsideration.
     The sole issue is whether the District Court errecl in
denying defendants' motion for change of venue.
     Mr. Hurly is an attorney in private practice at Glasgow,
Montana.    The defendants were the owners, operators, and
managers of a development complex near Billings. According
to the complaint, Mr. Hurly agreed to "provide business
skills to renegotiate on the guarantees of the Defendants to
[a Billings bank], and to work to renegotiate the terms of
[certain loans mortgaged to a Maryland corporation]."    Mr.
Hurly's complaint alleges that he provided those services,
but that the defendants failed to pay the entire fee for the
services. In answer to the complaint, the defendants filed a
motion for change of venue to Yellowstone County.       They
appeal from the denial of that motion.

     Did the District Court err in denying defendants' motion
for change of venue?
     In denying the motion for change of venue, the District
Court relied upon this Court's opinion in Whalen v. Snell
(1983), 205 Mont. 299, 667 P.2d 436.    Whalen involved an
attorney's claim for his legal fees. The complaint alleged
damages resulting from the defendant's failure to pay the
agreed rate for attorney fees.   This Court concluded that
this was a claim of bad faith in tort and that the rule for
venue was therefore found at § 25-2-102, MCA. The complaint
in the present case alleges breach of contract, not tort.
Further, Mr. Hurley emphasizes that he was providing business
negotiation skills and not legal services. We conclude that
Whalen is not controlling.
     Section 25-2-121, MCA, governs venue for actions upon
contracts. In relevant part it provides:

          (1) The proper place of trial for actions
     upon contracts is either:
          (a) the county in which the defendants, or
     any of them, reside at the commencement of the
     action; or
          (b) the countv in which the contract was to
     be performed. The county in which the contract was
     to be performed is:
          ...
          (ii) if no county is named in the contract as
     the place of performance, the county in which, by
     necessary implication from the terms of the con-
     tract, considering all of the obligations of all
     parties at the time of its execution, the principal
     activity was to take place.
          (2) Subsections (2)(a) through (2) ( d l do not
     constitute a complete list of classes of contracts;
     if however, a contract belongs to one of the fol-
     lowing classes, the proper county for such a con-
     tract for the purposes of subsection (1) ( b ) (ii) is:
          ...
          (b) contracts of employment or for the per-
     formance of services: the county where the labor
     or services are to be performed[ .I
When it ruled on the motion for change of venue, the court
had before it the complaint, the motion and response to the
motion for change of venue, two affidavits of Dean Studer,
and two affidavits of Robert Hurly. The first affidavit of
Dean Studer indicates that the defendants are all residents
of Yellowstone County. It also states that "the individual
contract was to be performed in Yellowstone County and not
Hill [sic] County."    Mr. Studer's second affidavit states
that Mr. Hurly met with defendants in Billings and hired a
negotiator who conducted negotiations, mailed correspondence,
and made phone calls from Billings.      Mr. Hurly's affidavits
state that while    some of his services were performed by
himself or others at other locations, the great majority were
performed by him in his law offices in Valley County.          The
affidavits clearly present conflicting evidence as to where
the contract was performed under fj 2 5 - 2 - 1 2 1 1 b i       or
( 2 ) ( b ) , MCA. The District Court must make the initial factu-
al determination on this issue. Section 2 5 - 2 - 2 0 1 , MCA.
         Remanded for reconsideration of the motion for change of
venue.
