                                    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 :




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