206 P. 425 | Mont. | 1922
delivered the opinion of the court.
In this case it appears that the plaintiff was engaged in the shoe repair business at Judith Gap, during the years 1917 and 1918, and in connection therewith became indebted to the defendant in the sum of $367.90. In April, 1918, the cashier
To N. S. Kalayjian.........................$259.12
To C. B. Stone............................ 170.00
To C. L. Holland........................... 135.00
$564.12
All these sales were made on time, the defendant agreeing to collect and account to plaintiff therefor. The defendant made collection of these several accounts, applied same in payment of plaintiff’s indebtedness to it, and the plaintiff being unable to obtain from the defendant the balance, brought this action in Silver Bow county, although all the transactions occurred at Judith Gap, in Wheatland county. Service of summons was made on the defendant in Wheatland county, and in due time the defendant filed a general and special demurrer to plaintiff’s complaint, and at the same time a demand and motion for change of venue, supported by affidavit of merits. Change of venue was by the court denied, the demurrer overruled, and the defendant filed its answer to which plaintiff replied. The cause was tried by the court with a jury and resulted in a verdict and judgment in plaintiff’s favor for the sum of $173.32. The appeal is from the judgment and from the order denying» defendant’s motion for a new trial.
Several errors are assigned, consideration of the first of which appears to us determinative of these appeals, vis.: Did the court err in denying defendant’s motion for a change of venue ?
The motion and demand for a change of the place of trial was made upon the following grounds:
“2. That all material witnesses with the exception of plaintiff himself, resided in the county of Wheatland, state of Montana.
“3. That the contract upon which the action was based was made in Wheatland county, state of Montana.
“4. That the contract according to its terms was to be performed at Judith Gap, in the county of Wheatland, Montana.”
The affidavit of merits filed with and in support of the motion for change of place of trial, reads in part as follows:
“Jas. G. Alexander, being by me first duly sworn, on oath says: that he is the duly qualified and acting cashier of the defendant corporation and its duly qualified and acting business agent and manager:
“1. That at the time of the commencement of this action and for more than one year prior to the commencement of this action and ever since the commencement of this action the said defendant corporation maintained its principal place of business at Judith Gap, in the county of Wheatland, and state of Montana, and has never been engaged in business or transacted any business in the county of Silver Bow, and state of Montana; that the summons executed [issued] in said action was served upon the defendant corporation in the county of Wheatland and state of Montana, as will more fully and at large appear from the return made in said summons by the sheriff of Wheatland county, Montana.
“2. * * *
“3. That this is an action for the amount alleged to be due upon a contract made in the county of Wheatland, and state of Montana, and to be performed in the county of Wheatland and state of Montana.
“4. Affiant further says, that he, as the business agent, cashier and manager of the defendant corporation, has fairly stated the case in this cause to Norman R. Barncord, an attor
Section 9096 of the Revised Codés of 1921 reads as follows: “In all other cases the action shall be tried in the county in
The rights of parties defendant under this statute, in actions on contract, to .have a case removed to the county in which the contract is to be performed, has been frequently the subject of consideration by this court; and it is settled that such actions, upon proper application, must be tried in the county in which the contract is to be performed. (Bond v. Hurd, 31 Mont. 314, 3 Ann. Cas. 566, 78 Pac. 579; State ex rel. Coburn v. District Court, 41 Mont. 84, 108 Pac. 144; State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030; State ex rel. Western Accident & Ind. Co. v. District Court, 55 Mont. 330, 176 Pac. 613.)
Although such is the settled law in this state, we would have no hesitancy in this instance in affirming the judgment; the case having been once fully and fairly tried, but for the fact, that the evidence is in conflict, and it is difficult to ascertain how the jury arrived at the amount of the verdict. The
Reversed.