                                No. 79-9
                  IN THE SUPREME COURT OF THE STATE OF MONTANA


R. K. PEENSTRA, d/b/a
TOWNHOUSE FURNITUFlE,

                        Plaintiff and Respondent,


MIKE J. BEREK,
                        Defendant and Appellant.


Appeal from:     District Court of the Eleventh Judicial District,
                 In and for the County of Flathead.
                 Honorable Robert C. Sykes, Judge presiding.
Counsel of Record:
     For Appellant:
          Smith, Baillie and Walsh, Great Falls, Montana
     For Respondent :
         Hash, Jellison, O'Brien and Bartlett, Kalispell,
          Montana


                                  Submitted on briefs: March 21, 1980
                                              Decided: ~ u l y22, 1980
Filed:   Jf2 3
          U-     198@
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

      Defendant Mike J. Berek, appeals from an order of the
Flathead County District Court denying his motion for a
change of venue to Cascade County.     The sole issue in this
appeal is whether the place of performance in a contract is
in Flathead County or Cascade County.     We affirm the District
Court.
      Plaintiff, R. K. Peenstra, d/b/a Town House Furniture
(herein furniture store) operates a retail furniture store
in Kalispell, Montana.     Defendant purchased furniture in
Kalispell but had it delivered to Great Falls, Montana, his
place of residence.     Defendant (herein buyer) paid $100 down
with the balance to be paid after delivery in Great Falls.
Payment was to be made to the plaintiff (herein seller) at
his office and business in Kalispell.     Delivery was made by
the seller but the buyer failed to pay, and the seller filed
suit in Flathead County District Court for the balance
allegedly owed plus interest.
      The buyer moved the court to change the venue to
Cascade County, his place of residence, and the place where
he alleges the contract was to be performed.     The trial
court entered findings and conclusions and an order denying
the motion for change of venue, and this appeal followed.
The essence of the buyer's argument is that the contract
called for performance in Great Falls--apparently because
delivery was made there. On the other hand, the seller
contends that delivery was made and the only remaining
performance to be made was that of payment, which was to be
made in Kalispell.
      Although the general rule in civil actions is that they
are   ". . . tried   in the county in which the defendants   ...
                                 -2-
     reside at the commencement of the action"     (section 25-2-
     108, MCA), an exception is provided in section 25-2-101,
     MCA, which provides that "actions upon contracts may be
     tried in the county in which the contract was to be performed
     . . ."    This section applies either where "the place of
     performance must be evident either by (a) the express terms
     of the contract, or (b) by necessary implication that a
     county other than that of defendant's residence is intended
     to be the county of performance."    Deimler v. Ostler (1979),

     - Mont.      ,
               - 600 P.2d 814, 815, 36 St.Rep. 1723, 1724;
     Hopkins v. Scottie Homes, Inc. (19791, - Mont . - 591
                                                      ,


             Here the express terms of the contract provide that the

     seller was to perform by making delivery in Great Falls
     (Cascade County), but that the buyer would perform by making
     payments in Kalispell (Flathead County).     The seller fully
     performed, but the buyer allegedly has failed to perform his
     obligations which are to be performed in Flathead County.
     Under these circumstances, we conclude that venue is properly
     in Flathead County.
             The order of the District Court is



     We Concur:


     n       Chief Justice




         /
               Justices      i/
-.
 .
