*1 objection dence thus have been admitted without ’ pleadings. have amended the questions We thus limited to an examination the law by error,
raised specifications namely, whether the decree is sustained the conclusions of law and the latter findings express fact, implied; and in that connection we imply any finding specifically necessary must but made to support decree, implied the conclusions and unless such find ing is express findings (Crosby inconsistent with the made. V. Robbins, 56 179, 182 122; Mont. Pac. L. & Co. Valier-Montana W.
v. Ries, supra.) finding
Since record shows with no of fact inconsistent any implied the conclusions of law or with finding neces sary conclusions, to sustain amply and since the latter sustain quieting plaintiff’s decree property against the title to the defendants, hereby the decree must be and affirmed.
Associate Anderson, Erickson, Justices Morris and Adair concur.
HARDENBURGH HARDENBURGH, et al., Respondents,
Appellant.
(No. 8457.) (Submitted February 16, November 1943. Decided (2d)
[146 151.] *2 Ralph Arnold, Mr. Appellant, L. submitted a brief and argued orally. the cause Anderson,
Messrs. Respondents, Sanders & submitted brief; argued orally. Mr. Milton G. Anderson the cause
MR. opinion JUSTICE ADAIR delivered the of the court. Appeal by denying defendant from an order his motion for *3 change action, of of trial. brought which was in Rich- county, land is to recover breach of written contract for sale. Defendant’s motion was for transfer of action Mis- the to soula county upon grounds: (1) the That defendant resided in that at the time of the commencement of the action and (2) that Missoula is the in which the contract was performed. to be appears complaint, copy
It from the the of the contract attaeh
ed and affidavit defendant in support thereto the of filed plaintiffs operated of his motion: That and defendant a com city advertising mercial outdoor business in the of Missoula and 23, surrounding territory; 1932, plaintiffs that on June entered him in into a contract with defendant to sell their interest business; parties that on the same date the also entered into agreement plaintiffs and executed a bill their escrow of sale of placed First interest, papers were then escrow with the Montana; Missoula, eight years that more than Bank National of passed and April on 19, 1941, Missoula, parties the into entered a new (the written contract one upon) they sued wherein “mu tually agreed replace agreement to said of June 1932 and the escrow instructions of the same date, stipula the and terms tions” contract; contained the new that in the new contract plaintiffs promised to deliver bill to defendant of sale “now held in Missoula, escrow the First National Bank of Montana, conveying party part to the of first [defendant] right, their advertising and and title interest to the commercial mentioned”; business plaintiffs promised heretofore that in the ‘‘ contract to Bank City instruct the First National Mis of the of soula, Montana, party to deliver part the first [de described, Bill of Sale Bank heretofore which said fendant] escrow, now holds in party and also to deliver to the said part agreement first escrow instructions [defendant] 1932;” promised dated June that defendant con pay plaintiffs commencing tract or their order with 10th day May, per long month $100 as either live; parties agreed them shall that in new that replace such contract “shall agreement lieu of and shall 23, 1932, dated June escrow and the instructions of the same date agreement hereby and said and escrow instructions are declared be null and void and of further no force or effect;” promised pay the defendant a reasonable attorney’s against contract; in case of him on fee suit that in plaintiffs event of either the death defendant before contract was null void and not to become the basis of estate; against claim the defendant’s at the time of en tering contracting parties into the new contract all the then were city county Missoula; residents on May commenced, following day, 1943, when suit was on when him, was served defendant then was a bona summons county, Missoula that defendant was served with resident of fide *4 has process county in and that he resided therein for Missoula years judgment 25 demand in amount past. last Plaintiffs alleged together delinquent installments certain interest interest, attorneys’ with complaint alleges fees and costs. The plaintiffs that “at all times material this cause action” have been residing Sidney, county, and now are both Richland Montana, alleging plaintiffs when without removed from Mis county soula period or for what of time claimed have re county. defendant, sided in In among Richland his affidavit the things, other deposes: “That said action is founded a written a copy which is complaint, attached to the which written in performed contract was executed and to be Missoula County, Montana and that all the thereto were County, resident in Missoula Montana at the time of the execu ’’ tion of only said contract. written The- one and statement paragraph plaintiffs above which controvert is that con performed tract was to be county, being Missoula con their tention that it was to be in Richland county.
A question presented, namely: proper venue is What is the county for the trial of this action? The answer above question must found in the terms of the statutes of this state regulating The regulate venue civil actions. statutes venue of such actions inclusive, are sections Revised Codes. general governing rule civil actions venue county
action shall be tried in which the defendant (67 Venue, resides at the commencement the action. C. J. title 27, p. 24; 30, pp. 27, 28.) see. sec. county jury
In olden times venue indicated from which the “Anciently come. was This is the basis for the rule: try any not jury arising one could matter in another county. A foreign thing almost as formidable as a country.” (27 2, p. 778.) day foreign present R. C. L. sec. legal means phraseology proper “venue” is, by cause; of a fixed the trial counties ‘ ‘ ’ ‘ ’ ‘ ’ ’ jurisdiction jurisdic statute for trial. Venue is not by consent or waiver while tion venue conferred Savings (Stanton & consent or waiver. Trust be altered either (2d) Johnson, Mont. Bank *5 474 (a) the regulating provide venue either for
The statutes exception application application (b) the for the of of rule or Assembly (1867) Legislative Fourth Territorial to the rule. The 19, pages in 18 and Practice Act and sections enacted Civil spec- was enumerated actions thereof, venue of certain the exceptions general the ifically provided and these constituted Act However, page in of said the section rule. in all than provided that other cases adopted and it was rule was be supra, 18 and the action shall in sections those enumerated may them, defendants, any county in the or tried in the which action. At all times since of the reside at the commencement state. Section part of the law of this provision has been “In all provided; Act Practice 20, supra, of the Civil in the county in which be tried the other cases the action shall them, may reside at the commencement (cid:127)defendants, any or Territory, in reside action; cr, if of the defendants none re- they so Territory, county in which in residing or if any tried in may be plaintiff, the same side be unknown to the complaint; may designate in his plaintiff which the from the may depart if be about to any defendant or defendants any where either Territory, may tried such action subject however had; may reside, service be parties of the or provided in trial, as change court to power of ’’ this Act. 1871, all of sec- Statutes of Codified In the enactment of the addition and in the Codes carried forward 20, supra, tion was amendment, new which by way of added new matter was thereto amended, statute, italics, indicating in said matter we are tried eases, action shall other 25. reading: “Sec. them, may any defendants, or county in which the in the plaintiff action, where of the or at the commencement reside found; or, if may any them he resides, or defendants or, residing in territory, if in the the defendants reside none of unknown to reside be territory, county which so plaintiff any plaintiff, may be tried the same de- any or complaint; and if defendant may designate Ms may fendants depart about to territory, from tbe such action be tried in either may reside, where of the service be had. Actions contracts he tried in the county in which the contract performed; was to he and actions torts, the county where committed; subject, tort however, power change court to as. of trial ’’ provided in this Act. Except changing “territory” word to the word “state”' ‘‘ ’’ and changing act, the word being statute, the last word in the ‘‘ ’’ Code, the word said section 25 of the Codified Statutes of *6 1871, page 31, has been re-enacted and through carried subsequent various revisions Codes, appears and now as 9096, section Revised Codes of Montana of 1935.
As the instant action is class enumerated in ex- ceptions provided in 9093, 9095, sections 9094 and Revised Codes of .1935,its venue must provisions be determined under the section 9096, Codes, Revised applies which to “all other cases.” 9096,
Section excepting only thereof, last sentence originally from taken the Code of Civil Procedure of the state early California and the construing decisions the statute held right have against the action him defendant county tried in the of his residence was under absolute the statute and that the court has (Watkins no discretion in the matter. v. Degener, 500; 63 Cal. 6 Keller, Williams Nev. As was Happy Talley said Brown v. Growers, 515, Fruit 206 Cal. 521r 274 right Pac. 979 : “The of a defendant to have an action ** * brought against him in the in which he has his residence is an ancient and right, always valuable which been has safeguarded by supported by long judicial statute a line of ’’ decisions. right given
While the by the defendant section Revised Codes, against to demand that the him action be tried in the proper county one, yet right is a valuable it is a (Stanton Savings not be claimed defendant Trust & Johnson, Bank v. supra; Ry. Co., O’Hanion v. Great Northern Mont. 518), provides: section “If the
county in which the action is commenced is proper not the for the trial thereof, may, the action notwithstanding, be tried therein, unless defendant, appears the time he and answers or demurs, files an merits, affidavit demands, writing, ’’ that the trial proper county. be had in the complied defendant in action this with statutory the above provisions. He filed a demurrer complaint to the and, at the time, writing same a demand in that the cause be transferred to supported by Missoula for trial an affidavit merits. It is conceded that defendant’s demand was made the manner prescribed within Codes, the time section Kevised supra.
The law require parties does not agree to a contract upon place a for the their permits contract but it them agree. When, so at the contracting, time of parties agreed have upon particular a they mutually wherein in tended their contract agreement was tobe will be respected given part effect for it is of the freedom of con tract to select the performed. where a contract shall give
order to full mutual effect intention of legislature enacted, permissive exception has gen eral venue rule declared in the first sentence of section 9096 an provision, appearing additional in the second sentence of the sec *7 tion, county designating wherein, contracting, the time of agreed had performed their contract was to be as a proper county trial of action based This thereon. performance exception, however, applies only to actions upon plainly based show, (a) by contracts which either their express (b) by necessary implication therefrom, terms or that contracting parties, mutually time contracting, at the of did agree upon particular county a than other that defendant’s of residence wherein intended that their contract was be to performed. performance exception The set forth in the second general statute, 9096, provides: sentence of the venue section county “Actions contracts be tried in the in which the contract performed.” was to (Emphasis ours.) be It be will noted enacting that in provision legislature this used permissive “may.” word provision
“Such a exception furnishes an rule county resides, defendant must be sued in the wherein he a purely confers statutory right. applies only It to contracts which their performed terms are pay- to be or which under ment is particular place, to be in a made but such terms where they permit exist them, brought suit to in county fixed n althoughthe county.” (67 defendant resides in another J.C. Venue, title 33, pp. 31.) right plaintiff sec. a to “The of have an action in than county tried another that in n defendanthas his exceptional, and, plaintiff residence is if the would right, claim such bring he must himself within the terms of exception.” (Brady Co., v. Times-Mirror 106 Cal.
Pac. 209, Corpus In 67 Juris, “Venue,” bring Title it is a said: “To operation contract within the of of statutes the character under obligation perform consideration particular a plainly present must express under either terms the con- tract by necessary implication and venue cannot therefrom (Sec. 38, conferred on doubtful construction of the contract. ** * p. 33.) particular county must be fixed and certain at * * executed, only the time applies the contract is *. The statute party, a case executing where the at the time agrees perform part particular his thereof some other apply provision than his residence and does of a con- allowing party designate ditional contract sales the other * * * (Sec. payment. 39, p. 34.) Statutes of the charac- ter frequently applied been under consideration have actions arising personalty. of contracts To maintain out for the sale suit plaintiff than residence another defendant’s clearly bring must relied on within show the the case one facts clearly exceptions must so to the rule and state de- that it than that is to be another placed construction can be residence no other fendant’s fair *8 * * * upon (Sec. 50, 39.) it. p. Statutory provisions creating ex- ceptions recognizing privilege rule a defendant’s to be sued in his gvien own will be strained or * ** Agreement doubtful A construction. clear. mere must be by sufficient, direction the payment seller as to the is not sued, promise nor can a purchase price remit cover be upon by the seller in re- point to which (Sec. 51, p. 41.) mittance is to be made.” upon It is not the that the action is a contract fact founded particular- but the fact contract sued indicates the county which, mutually contracting, in at the time performed intended it that brings was the action within the tobe performance exception in provided the second sentence of section 304, early 1891, 10 Murphy, 9096. In the case of Yore Mont. determining question Pac. in of venue tort, whether in in this court the action sounded contract or contract “If in it- seems face of the observed in performed which that it to be must disclose was commenced, lay and retain venue order to action ‘‘ ’’ in which the contract was county. words, The statute, contracts employed in the refer to performed,” to be indicate were to their terms Bishop, 80 (Lamar Milling Co. v. particular county. Alfalfa Colo. doing things promised
Performance in the consists money delivery of obligation done. The be for the (Sec. performance payment. only in which event the is called However, us called for Codes.) contract before Rev. money, delivery things than doing other of various obligation nor con- payment not fulfill the hence alone would “per- word contract. Thus has the stitute word meaning “pay- than the comprehensive a more formance” statute, em- legislature, framing and, ment” since the performed” phrase “was to ployed comprehensive more qualifying meaning, either context or limiting without its signification. broadest word, accepted it is to be having us writing, before been reduced “the *9 parties intention of writing is be ascertained from to alone, possible; subject, if however, provisions to the other of” Chapter (Sec. 7530, Codes.) of the Civil Code. Rev. It is conceded that the contract express stipulation contains no des ‘‘ ignating any particular county in which the con performed.” (Sec. tract was io be Codes.) Rev. The an venue of action based regulated by contract is alone, may rule unless it be said that the of the nature itself, contract considered in connection with and cir the facts made, cumstances under including which it was the matter to which it pertinent and provisions (see. relates of the code Codes; Rev. Bank Sperry Co., Yolo v. Flour 141 Cal. of 314, 74 90), plainly L. R. A. that, indicate at the time contracting, it was then the mutual intention parties that the contract was particular to be a county other than that of defendant’s residence. legislature
The has enacted prescribe certain statutes which rules contracts, which “all public private, whether are or to be interpreted.” (Sec. 7526, Codes.) Rev. provisions These obligatory are “A on courts. contract interpreted must sobe give as to to the parties mutual intention itas existed effect contracting, at the time so as the same is ascertainable far (Sec. 7527, Codes.) (Emphasis ours.) Rev. “The lawful.” whole of a contract together, give is to be taken so as to effect to every part, reasonably practicable, if helping each in clause terpret (See. 7532.) explained the other.” “A contract by reference to the circumstances under which it was made (Sec. the matter to 7538.) which it relates.” “If the terms of promise a any respect ambiguous uncertain, are or it must be interpreted in promisor the sense in which believed, at making promisee time it, (Sec. 7540.) that the understood it.” a Where contract a performance,” “does not indicate ‘ ‘ is interpreted according to be law usage of the (Sec. 7537.) (Emphasis ours.) where it made.” things “All that in usage law or are considered as incidental to a or as necessary to carry effect, implied therefrom, it into un are less some expressly of them are therein, mentioned when all other things (Sec. same class are deemed to be excluded.” ‘‘Stipulations necessary reasonable,, are to make contract usage, implied, respect conformable to con to matters cerning contrary which the contract manifests no intention.” (Sec. contract, it. “However broad the terms 7546.] only things concerning extends appears to those which it (Sec. 7539.) intended to contract.” buy agreement This involves a mutual sell (Sec. in a county. 7583,. interest located in Missoula business Codes.) property plaintiffs Rev. agree which the sell and the buy Missoula, defendant was deliverable place in agreement. (Sec. which it making was at the time of 7601.) Upon delivery, agreement con the absence of *10 trary, buyer, there, obligated the defendant then and became to- “pay (See. price thing statutory the of the sold.” payment by express stipulation time of in con was modified the price monthly agreeing payment tract install the place statutory place payment, being the where- ments but the making agreement property the time of was at the the the (sec. 7601), changed anything* was modified or nor is there making intention oil contract or its that shows the about part parties provide any place different the of the other or payment was at price property than Missoula where the of the Contracts, contracting. S., In' 17 section the time of C. J. title pláce 815, performable it “A contract is at the 357, page is said: or, stipulation, stipulated by parties, the the absence of supposedly understood at the time parties where the place at the * * * performed. In absence the of the contract it was to showing* and circumstances express stipulation or of facts elsewhere, place parties performance intended to be was performance where the is deemed to be made.” light in the agreement
When the terms are considered relates,. agreement matter which the usage of common and the 481 it is clear Missoula was in which the con tracting contracting, intended their con parties, at the time of is in which performed, tract was to but since this the defendant resided at commencement of the action regulated by than perform venue here is rather the rule exception provided 9096, ance In section Revised Codes. Swartz v. Packing Corp., App. 56 Olive Growers’ Cal. California (2d) 168, 133 (2d) 20, 22, Pac. it was “Inasmuch the con said: performable specified tract no was upon circumstances execu which the attendant writing tion of the indicate that the intended as a theater performance.” (See Corp. Rasmusson, v. 53 also Joe Lowe App. (2d) 490, (2d) 1002.) Cal. 127 Pac.
Except for the causes enumerated in 9093, sections 9094 or 9095, Codes, Revised regulated by the venue of civil actions provisions following involving of section 9096. cases actions residence, contracts the of defendant’s under declaring first rule, sentence of section 9096 held was regulate venue, Owsley, viz.: v. 11 27 Pac. 219, Wallace Mont. 790; Collins, 372, 549; McDonnell v. 19 Mont. 48 Pac. Bond v. Surd, 314, 579, 31 566; Mont. 78 Pac. 3 Cas. ex Ann. State rel. Schatz v. Court, 554; District Mont. 105 Pac. Feldman v. Security Bank, 425; McKinney State 62 Mont. 206 Pac. v. Mires, (2d) following Mont. Pac. 169. In cases county in which the performed, contract was to be under the sec performance exception ond sentence or of section 9096 held to regulate venue, viz: ex Court, State rel. Coburn District 144; Mont. 108 Pac. State ex rel. Interstate Lumber Co. v. Court, 602, 172 1030; 54 Mont. State ex Western District rel. *11 Indemnity
Accident & Court, 330, Co. v. District 55 176 Mont. Rocky 613; Sough Pac. Co., 244, v. Mountain 70 Mont. Fire Ins. 224 858; Jankovich, 363, 904; 72 Pac. Stiemke v. Mont. 233 Pac. 825; Courtney 74 Morin, 398, Gordon, Silver Mont. 240 v. Pac. v. 233; Staunton, 74 241 100 408, Mont. Pac. Earl Clack Co. v. 11. 26, (2d) 1069; Mining 44 Mont. Pac. Kroehnke v. Creek Gold Co., (2d) 678; Drug 55 21, 102 Mont. Pac. Colbert Co. v. Elec
trical Products Consolidated, 437, 106 Mont. (2d) 74 Pac. v. Cloyd, Thomas Mont. (2d) Pac. 938. early uniformly performance Our ex decisions held that the ception applies of the only express statute to actions on contracts (Bond Hurd, supra) v. upon wherein the contract sued discloses on its face particular county that it towas in a other than (Yore Murphy, that of defendant’s residence v. supra); regulated that “in all other cases” the venue was the first declaring general gov section 9096 sentence of rule erning place of trial.
In ex Court, supra, State rel. Coburn v. District departed per from court its former decisions held exception applicable to be to an action on a contract formance wherein the contract failed state terms where it was to performed. distinguish former opinion only fails to our them. decisions but to refer to of omits . Court, ex Interstate Lumber Co. v. District State rel. supra, departed further from its former construction the court (1) held, provision that the venue statute and: wholly in- declaring rule is first sentence of the statute only excepting on applicable upon actions to actions contracts state; (2) held, performable contracts outside to actions on contracts performance exception applicable held, venue implied; (3) that the every kind, express whether performable contracts, excepting contracts actions on all provisions perform- regulated state, is outside “may” word (4) permissive that the exception only; held, ance given statute exception should “must;” held, res- (5) imperative word force of longer a material consideration is no the defendant idence of actions actions contracts or either determining venue of the Montana cases overruled specifically torts, (6) v. Collins, supra, Bond v. Owsley, supra, McDonnell Wallace harmony not in which are “all decisions Hurd, supra, and 602, Mont. expressed.” [54 herein conclusion with the har- by this court is rendered theretofore No decision 1032.] *12 483 mony holdings. only with the above case theretofore decided by this in hopeless court which is not conflict with the conclusion expressed therein case, supra, assigns wholly is the Coburn and it different reasons from those advanced Lumber Interstate Co. case, supra. similar, and in
Provisions some with of eases identical those 9096, Codes, section Revised are found venue statutes yet states, other we found it have no other court that has found impossible to construe the written statute as or that holds “may” changed unless the therein pro word “must” to vision meaningless. should be rendered example, For identical provisions are found in the venue statute of Colorado Supreme state, where Rutliff, Court of that in Kimberlin v. 93 99, (2d) Colo. 583, 584, Pac. said: “The contract is silent as to performance. In that situation, the Code pro vision relative right of trial in con where the tract performed applicable. provision to be is not has Siich to contracts which their performed terms are to be reference particular place.” a (See, Engineering also E. F. Gobatti & Corporation M. Works, Colo., 1943, 139 v. Oliver (2d) Wells Pac. Trueman, Palfreyman (2d) Utah v. Pac.
The Utah Palfreyman statute construed in Trueman, supra, cleai-ly applies only only to written contracts and to such plainly definitely particular place those as a indicate per- formance, uniformly held, prior but this court decision case, exception Coburn of our statute express applied only only likewise contracts as, by necessary implication therefrom, these in terms or indicate particular place parties a in which the intended that performed. cases, was to be including other all cases where any uncertainty doubt or exists as whether the intended particular place the contract in a was to .be plainly particular per- omitted indicate formance, performance exception not held that the did apply brought of an action on such contract venue
should provisions be determined under the of the first sentence Codes, of section Revised wherein is declared the rule. However, in 1910, supra the Coburn case, Mont. [41 145], employment contract of in which “there was payment mentioned” per- was held to come within the exception. formance accomplish in- result, To this the court *13 dulged the presumption contracting, that at the time of omitting any performance, reference to of the contract- ing parties thereby incorporate manifested an intention to their “that, English relating tender, contract the old rule viz: payment specified, where the of is not the debtor must seek seas,’ creditor, him,” his if .within ‘four and make tender to business, where the creditor has his of or where the creditor resides, relying or wherever In he be found. addition to upon approval the tender the court cited with rule also Sperry California of Bank Co., supra, case Yolo v. Flour neither applied departure nor involved the tender rule. The next from given general the construction our venue statute theretofore and, occurred in case, 1918, supra, the Interstate Lumber Co. stated,, upon entirely before the decision was based different assigned from reasons those in the Coburn decision. the Inter- case, general state Lumber Co. the court its construction of the (sec. Codes) venue statute Rev. inserted into the statute imperative permissive word “must” in lieu of the word gen- “may” “contract,” as used in the and held that the term signification statute, accepted eral must broadest venue express or im- including every and as kind of whether by inserting plied. By construing “contract” and so the term statute, “may” “must” the word used word de- application rule entirely court eliminated the venue 9096 in action clared in first sentence of section any place irrespective of whether or not change and amend the venue stipulated therein. To so legislative department required the action of statute pro- department is judicial government, powers which the IV.) court (Constitution, Article exercising. hibited from charged duty ascertaining is with giving and effect to legislature enacting intention the statute and of ascer- of the taining contracting giving intention effect to the of the parties making or the contract. The court not rewrite remake either the statute each or the contract. We must take as it is written. The intention is to ascertained from what the statute or from contract contains not what is omitted Codes, provides: therefrom. Section “In the Revised instrument, judge construction of a statute or the office of the simply is to ascertain and is declare what in terms in sub- or therein, omitted, stance contained not to insert what has been or inserted; omit what been pro- has and where there several visions particulars, is, possible, such a if construction adopted give as will all.” effect to relating
The rule case, supra, to tender invoked in the Coburn is only with inconsistent but it the antithesis is rule regulating purpose venue. rule for the de- The venue termining-, outset, proper place for the trial of action is stated in terms of to an action is to the effect clearly that in the bring absence of facts which ac- *14 tion statutory within the exception, terms of some the venue shall be fixed in the in which the defendant time resides is suit commenced.
The rule, tender hand, on the other not is stated in terms parties to a civil action but it is stated terms of debtor and, creditor applied venue, to be to tender be rule must translated from the terms of debtor creditor in which is it parties stated to the terms which the to a civil action are (Sec. 9009, Codes.) known. Rev. At commencement trial, action and in party advance of the which to is the lawsuit the debtor and the creditor? presume plain- which is To that the presume tiff in the action is prevail the creditor is to that he will However, plaintiffs always the lawsuit. do not win. Fre- quently judgment action results in a for the defendant and judgment a sometimesthe defendant is awarded on counterclaim clearly judgment the defendant is creditor. which event If, however, upon a not the action is contract which does terms, by necessary implication therefrom, indicate that was presume in a and if particular to be we that as performance contemplated by is place of the statute the same payment presume in advance trial and if we plaintiff presume if that is crdeitor and we contracting- presume applicable tender and if we rule is that, presumed know law and at the time to relating contracting, law, i.e., that such rule they intended contract, and tender, and read into their should be inserted any county fixed where- thereby place a is wherein he resided or had of business or plaintiff his then, by suit, instituted happened to be when he wherein he general venue presumptions, would the indulging such simply general and eliminated from the entirely construed out of rule would, tender inserted the statute, and in lieu thereof venue residence or plaintiff’s place of business or which makes rule controlling determining factor venue. whereabouts the presumptions however, may not resort to court, The a based the statute for conclusion or rewrite remake the contract Sather, 81 (Holt v. permissible presumption upon double based a conclusion 108) and 457, 264 Pac. Mont. fortiori (Doran not be tolerated. presumptions will upon a chain of V. 78, 20 Pac. Ass’n., 94 Mont. Building & Loan United States (2d) enacting section legislature principal purpose of the
The common- and declare the Codes, preserve 9096, Revised was to application require governing law venue rule excepted operation from its specifically those other than cases by reading into may not frustrated purpose and this result opposite brings about the rule the tender statute may not rule tender legislature. by intended from these and for venue rule circumvent be invoked v. District ex Coburn rel. State overrule specifically reasons we *15 Indemnity v.Co. & Accident rel. Western ex Court, supra, State Co., Rocky Fire Ins Mountain Hough supra, Court, District supra, and applied such other of our decisions as have tender the rule for purpose determining upon the venue of actions Only uncertainty contracts. at- can result from confusion tempts to read tender into our To rule venue statute. illustrate, may we in assume that at the Silver Mine Wave county, Broadwater in miners case, mentioned the Coburn had been employed; in each miner resided a different county in state; this upon pay wages them failure to supplied due labor which operating mine, had in miners each there, returned in to his home and of his residence, separate against each should institute a suit the em- ployer recovery wages Application for the of the due. of the tender determining compel rule in venue would the defendant separate employer to defend action in each of the 56 counties statutory of this right state and would defeat his to have (defendant’s) actions transferred for trial of his residence or to Broadwater were wherein the contracts performed. made and doctrine, the labor To such de- this court clined Security Bank, subscribe Feldman v. State 62 Mont. principle may which on distinguished from the case at bar. expressly disapprove holding
We also Interstate Lumber Company case “may” that the word sen- the second Codes, given tence of section Revised shotdd be the force “must.” “may” law must is that word statute according approved usage be construed to the context and the language (sec. 15, Codes) construing Rev. and that statute, word, every effect, must given clause and sentence possible if so, it is provisions to do to the end that different may be made consistent and each assigned harmonious and intelligent meaning. (State rel. Interstate Lumber v. Dis- ex Co. Court, supra.) trict
We further provisions hold the first sentence 9096 applies section to all actions to all actions provisions for torts that such exclusive, but are not tort action be tried in com- also tort was
mitted and may actions on contract also be tried in the in which the contract performed was to be provided that the con- upon indicates, tract sued either in by express implica- terms or tion therefrom, particular county in which it per- was to be formed other than the which the defendant reside at the commencement of the action.
In the case, Coburn seem would con- nature of the tract and the surrounding making facts and circumstances manifest the mutual employers intention employees of the and at ' the time the contract entered was into. The manifestation wholly mutual intent partly by be made spoken or written or by conduct, words or other acts or for it would seem that in the agreement absence of or facts indicating and circumstances contrary intent, persons mill, when employed mine, are at a smelter, perform ranch or home and there labor and render services, contemplated by parties, it is employer as well as employed, upon performance of the em- services the ployee paid wages mill, shall mine, receive his there at the smelter, ranch performed. or house where work These was common, everyday They by transactions. must be so viewed interpreted the courts. The contracts must be in a common-sense given by contracting manner such as would them parties brought Eng- without resort to some ancient rule over from land governing contracting parties tender of which the in all nothing probability had heard and never there is other presumptions upon presumptions than fiction and based any incorporate to evidence mutual intention to their con- into ago practice “Centuries became settled that where tract. contract, payment party to a is to work is to be done one other, work, when no made of the specified in performances are relative times for the generally parties now precede payment. It is so true that must any custom, apart from contract with reference to this imposes a constructive condi- intention the law manifestation of Contracts, 270, p. (Restatement the Law. sec. tion.” applica wholly apart from and all For these reasons tion of rule, opinion the tender we are reach that this court ed the correct result in the Coburn and that in absence case of anything specific appeared more than in the record in that case “that mine entire was to be at the county, agreement Broadwater and that never contemplated engaged daily that the men labor mine go should have to other their to some to collect wages.” In Sperry the cited case Bank Co., Yolo v. Flour supra Supreme Cal. 90], L. R. A. [141 ‘‘ Court of plaintiff right California said: com had the mence action in made, the contract where *17 * ** performed. where it was to In a suit the contract corporation, of a place where no of is expressly stipulated, ought it performable to be held place the where the circumstances, light pertinent viewed the of provisions, code parties expected indicate that per the intended or it to be ’’ formed. The case of Owsley, Wallace v. is supra, on all fours with the State ex rel. supra. Interstate Lumber case, Co. v. District Court In each case the a seller, merchant, at the request instance and buyer, the buyer sold and delivered place at the seller’s Helena, business in county, Montana, Lewis and Clark mer- agreed price.' chandise for an Upon buyer pay failure of the to agreed price goods the for the him, so delivered to the com- seller against menced buyer action the and Clark Lewis to price. buyer recover the In each claimed case the be a resident to of Silver Bow when suit was instituted and each case buyer county, was served with summons in Silver Bow to buyer county, each demanded that the action be trans- ferred Owsley for trial. In the this case court held that buyer’s proper for place residence was the trial Company case, while in the Interstate Lumber under same facts, statute identical and court held that the wherein goods sold and delivered and the seller maintained were principal proper county place business was the trial. implied express agree If we are to con- contracts well as by provisions contemplated the performance tracts exception, agree result then we with the reached the Interstate Company case, supra, disapprove Lumber but of the reasons Owsley assigned In the and therefor. Interstate Lumber Com- cases, pany buyer supra, presented a himself at the established place there, buyer’s request, a of business of merchant at the price buyer delivered at a personal property was to which the agreed. agreement any the absence of or facts and circum- clearly showing contrary intention, stances such a transaction was contemplates that there at when the merchandise the time .buyer place where merchandise delivered buyer, expected pay price delivered to the he would de- buyer goods that, if the left the where the were future making payment therefor, would at a livered without he pay agreed there the seller the date return price governing is the sales for such merchandise. This law everyone. writing required make No is —it is understood applicable knowledge for it is a matter of common accompanied by personal property bulk of vast sales of is not Lambros, (Lewis written thereof. 58 Mont. evidence grocery A a loaf child sent to corner will, starting money for the with errand, bread ask before on because, anything whatever purchase which to make without payment; the under- being respecting time child said parties, absence contemplated that it stands *18 price contrary arrangement, of the loaf shall of a place at and the loaf is deliv- the merchant the time handed to agreed, delivery goods pay- and otherwise ered. Unless pro- price are concurrent conditions. So the Codes ment of the where place is at the property sold deliverable vide: “Personal * * (See. agreement to sell or it at the of the sale time thing price pay “A must and, buyer of Codes) Rev. * * Id.) (Sec. 7622, delivery sold its on Indemnity District & Co. v. Accident ex rel. Western State of recover, under the terms an supra, action Court, involved by in Richland contract, for a loss sustained indemnity an plaintiff indemnity indemnitee. Contracts of insurance quite their nature different from as contracts of sale were Owsley, supra, involved in Wallace v. the Interstate Company case, place performance Lumber supra. The of of thereon, contract indemnity, regards of venue action injury is the judg- wherein or the loss occurs or wherein against (Malmgren ment is obtained the assured or indemnitee. Co., Southwestern Ins. 201 Cal. 255 Pac. Automobile necessary was proper It neither nor to invoke the tender rule of case, supra, performance Coburn place to determine indemnity contract of or the venue of the action founded case, thereon in Indemnity Company the Western Accident & supra, for obligation liability there the of the defendant in- demnity company, contract, under at the arose time when in the where the occurred. While was loss the- contract yet silent as place payment, very from the nature of the contract plainly contemplated parties at the contracting time of the event of loss within contract, terms of paid the amount loss of such would place indemnitee where the would be loss sustained or judgment against where him would be rendered. It was not of tender but the injury of loss or that was to fix the performance regulate the venue of an action recover on the contract.
A sufficient number of former been re- our decisions have wholly with viewed to show the tender rule is inconsistent order re- venue rule. The of the district court is with directions versed and the cause remanded to transfer county for trial. action to Missoula Anderson
Mr. Justice concurs.
MR. JUSTICE MORRIS: my parties not,
It is at the view that the contract did any place time entered into the have notion of county Missoula, than inten- other and the into tion of the at the time the contract was entered *19 492
should changed not except by agreement. be mutual I do not concur in all that opinion by is said in the Adair, Mr. Justice but I concur in the result.
MR. JUSTICE ERICKSON:
I dissent. I am opinion of prior decisions this court, State ex rel. Court, Interstate Lumber Co. v. 54 District 602, Mont. 1030; 372 Pac. State ex rel. Coburn Court, v. District 41 84, Mont. 144; 108 Pac. State ex rel. Western Accident & In demnity Co. Court, v. District 55 330, Mont. 176 Pac. Silver v. Morin, 74 Mont. correctly interpret portion Codes, section Revised relating to venue now portion before us. That simply upon states: “Actions contracts may be tried in which the per contract was to be ” * * formed, As construed this court in the decisions above cited, simple language this require has been held proper application the cause be tried in per where had, applying formance the contract was to be the usual statutory provisions place performance to determine if the place performance contract is silent as to the where is to occur. Further court application has held that where the made is proper place but one trial for exists and that is in performance. It interpretation seems to me that this language entirely is majority reasonable. The substitutes the prevailing rule statutory provision Colorado where the same provision exists. Under rule this section has no. application where the contract does specifically provide not place performance for place performance or where for necessarily implied from terms Further, of the contract. majority though states that even apply section does yet places party there are other for trial and no demand trial in where the contract is to resides, so as trial in to exclude where the defendant plaintiff or where the resides and the defendant found. I find majority cannot the confusion that disturbs the under up decisions of this court past to this date. Under the cle- cisions, perform- the contract as to where is silent necessarily ance or where cannot *20 implied ordinary general from the language of the tests for place performance applied, determination of for were statutory easy those are seems tests of determination. It majority to me that to adopted if the view is to it would have be be limited the terms there under the statute contracts where to was an express provision place go to performance for the for suggest place performance further and for be de- can by necessary implication clearly termined is not warranted and you might when apply necessary implication the latter it test already not be said applied that this court has that test when implied has held as necessarily it has that it must be that where place performance the contract silent as to the is necessarily place contracted with the statutes in mind and the performance was, effect, placed in in the contract for this reason ? placed
Much seq. is reliance on section et of 67 There C. J. general are statements therein contained effect that section in the venue statutes here under has no consideration application particular to contracts which are as silent county in obligation performed. which the is to be writer The cites Illinois, eases support gen- from in Iowa Texas of this proposition eral and the Montana are not The- decisions cited. in states, Utah, statutes three those as in the well state of entirely “When,, provides: from different ours. The Iowa statute terms, its any par- the written contract is to be * * place *”, (Code 1939, 11040), may ticular sec. then trial performance. had Illinois in the casé cited J. footnote of 67 C. see. was decided at a time when Illinois provided may may that trial statute be had “where the contract (See specifically payable.” Chapter have been sec. made Revised Laws Illinois The Texas provides: statute a person writing perform obligation “If contracted in an has particular county, expressly in a naming county, such a def- writing, therein, inite then trial in the be had performance. (Vernon’s Ann. Civ. subd. St. art. “ 5). The Utah statute is: When the defendant has contracted
in writing perform obligation particular county in a ” * * * (Utah 1943, 104-4-4,) state Code trial had in the obligation performed. where the is It these statutes that the writer in his in 67 C. J. relies statements authority and it con- is obvious that the statements are not statutes, By struction of our statutes. terms of these body writing designa- contract itself must contain statute, tion had. in which is to be Our course, comparable any way with statutes. Un- is not these writing. need not be in Our provisions the contract der our proper that a with mere statement contented itself legislature performed.” the contract “was to be trial is where place for quoted from have been states whose statutes in the four Even rule, long way legislative relax the gone has the court above *21 though there held that the court has even those states as in all of as to body of the written contract in the express provision is no by necessary implica- that decide trial, the court place for place was intended. particular tion one exactly the same above, with Colorado has been indicated As leading here. The Colorado majority does as the statute has held based, is all the later cases upon which the case and one 45, 404, Rep. Am. Ill, 59 Pac. 83 St. Gordon, 27 Colo. Brewer v. indemnity was on in that case The suit in 1899. decided county where brought in the must be held that suit bond. It was the was, than company, rather indemnity defendant, the exactly paid. We had indemnity was to county where Ac ex rel. Western in the case of State before us question same Peculiarly Court, supra. Indemnity District Co. v. & cident Richland ease was also in that county involved enough, the Colo twenty years after directly, some held county-, we was county where the bond county, the case, Richland that rado reaching con its place for trial. proper paid, was the per place for provide must itself clusion proper be the should before formance place trial, court, case, for the Colorado the Brewer relied on from' Texas cases and Iowa and the entire of the decision bases prior were these cases from states. No discussion of these two the Colorado statutes is had in bases the Brewer case the sole for prior the decision are these Texas and Iowa ones. In no case since distinguished Brewer v. Gordon has be the Colorado court tween their statute and the statutes of other states and entirely later cases are based v. on Brewer Gordon and in none of the later Colorado eases has there discussion been conclusion, rationale of exception the court’s apply venue statute does not when the contract is silent as performance. That the Colorado resulted rule has not jurisdiction many entire satisfaction in apparent by many following cases A Brewer v. Gordon. few of those cases People are: ex Court, 330, 7; rel. v. District 66 Colo. 182 Pac. People ex Tripp rel. County Court, Fremont 72 Colo. 102;
Pac. Lamar Milling Bishop, v.Co. 80' Colo. Alfalfa recently brought 689. As again the matter was before that court in Kimberlin v. Rutliff, Colo. 23 Pac. (2d) 583. .
That majority has some doubt as to the correctness of position in overriding prior decisions of this court is in- dicated fact length that it question discusses at some of whether implied or not it must be from the nature of the agreement and understanding that Missoula for performance of the contract. If that were there the case necessity would be discussing no Montana de- earlier cisions as recognize the fact if the contract itself either expressly by necessary implication provides per- formance, then had recourse not be to the tender statute *22 any or statute, they apply only other in as the absence of a con- provision tract fixing place performance. for I in the am not agreement majority says with what this matter. as to one, necessary implication from the transaction if there is whole payment parents is that could be made to the wherever might A pertinent question be, be. would if this defendant were pay up the arrears under today, his contract discharge so
his obligation, in where Missoula and to whom would he payment make that ? The obvious answer nothing is that is there in expressly either by implication regarding any or person in Missoula where he could make such payment only that he could make effectual tender provided is that by majority the statute. The carves out exceptions rule, example to its own as says that in the case of an goods over-the-counter sale per- obvious necessarily, formance the one which must though there no written nothing contract and necessary implication from which a can drawn, implied payment money so far as is con- cerned, place, my is in the of business of the seller. To mind this judicial legislation. making is mere I can find no Colorado case I exception such an nor can find other from states quoted I whose statutes have in this dissent.
I think be affirmed. the trial court’s order should ME. JOHNSON: CHIEF JUSTICE necessity, impelled again, I Although deplore I feel as (2d) 516, County Wight, p. ante 145 Pac. Yellowstone point out what seem to me the es separately order dissent emphasize fact that majority and also to sential errors of the (Wild v. Wight in In Irvine’s Estate case as re as ma 489, 147 A. L. R. (2d) 139 Pac. Sail), 114 Mont. expressly controversy without revers present jority dispose of it. While three they badly unsettle members ing although the law con form one member’s case, disposal concur fully in above, does not cases mentioned currence, two sign treatise agrees with the extended respects he in what dicate majority. constituting Thus the members two ed the other majority this court think what the know and bar cannot bench only it does not consider ought be, but is, law or during more court this be, as declared is, ought law or century. than half legislature out, the territorial points majority decision
As the *23 1871, nearly in three-quarters century ago, of a de altered the fendant’s “ancient right” and valuable to in be sued the residence, of his by providing that in be actions shall tried either in plaintiff resides, “or the where ’’ defendants, the found; them, may thus, be toas defendant, making merely the test residence, his his but whereabouts,” “residence cr as court in said rel. State ex Interstate Co., infra; Lumber provided at the same time ‘ upon may actions contracts be tried in performed, was to be and actions for torts where provisions the tort was committed.” Those since have been re-enacted through and carried compiled successive revised amendment, appear codes without and now section as 9096, Revised emphasized Codes of 1935. It must in the be provision latter only “may” there is one and that whatever meaning applied as as to contract actions must also be same applied to tort actions. ex Court, State rel. Interstate Lumber Co. v. District
Mont. 602,
“To whether an either county, only ques proper been commenced classes has where, in the one and determine is consider tion the court other, where performed, or, in the case, the contract was to below, decisions- appear As will our own the tort was committed. im harmony, but in them at least this court are not two of given the last sentence pliedly adopted construction we have de section, by refusing recognize the residence of the Living (Oels Helena & v. fendant a material consideration. 1000; ex rel. Smelting Co., ston 10 Mont. 26 Pac. State & R. ” Court, 41 Mont. 108 Pac. Coburn District *24 twenty-six promulgated in Ever since that decision was years ago, recognized law that the residence it has been the upon actions nothing defendant to do with the venue'of the has could torts, place performance of which or contracts the for there cited be or not the Oels decision determined. Whether clearly held that effect, it authority valid to the same constitutes terms expressly appear the place performance the need not 1891, fifty- promulgated in of the contract. That decision was twenty-six regular legislative years ago. three Since that time statehood) and numerous (all sessions but first two since the any legislative action special held without sessions have been Nevertheless, by this court. change interpreted the statute as so by now proposes change the law above majority decision a tort necessarily entitled to have not holding that a defendant is a or tort was committed where the tried action have contract was to county in which the action in the “proper counties” are two other performed, been but that there namely the general provision, for under the the trial plaintiff county where the resides, and the defendant where the latter found; and that the defendant and the resides unless action the trial of a contract only proper counties the contract. terms of performance appears place for special pro- majority limits effect of holding By this place expressly provide for the express vision to contracts legislature requirement which the adding performance, thus certainty with which destroys majority thus The omitted. seventy-three regard a statute and bar are entitled bench half of more than judicial precedents years’ standing and period of statehood. Montana’s entire virtually century, covering majority’s expressed reason is that wrong this court was fifty-three years ago wrong since; has been ever but under the circumstances it would seem legislative absence of bar, amendment the bench justified should be regarding definitely propositions (1) settled the only proper county for trial of a contract or tort action is the where the contract was or the tort was com- mitted, (2) that “contract,” the word being used in the statute without limitation qualification, includes all contracts, without limitation or qualification; (3) place performance need specifically not stated in legisla- since the ture did provide; (4) so that the courts should therefore determine performance by reference to the nature of the contract, the under made, circumstances which it was law generally applicable performance contracts, including the law as Certainly, to tenders. in the absence of express provisions contractual contrary, latter in- dicates the lawful pay for the aof contract to money, as this court case, held in the supra, Coburn thirty-four years ago.
I cannot concur in the belief that all these well-established *25 propositions should overturned, be overturned. If plaintiff may bring a tort action either re- where defendant sides, plaintiff or where the resides and a defendant can found, committed; or where the tort was and the cause cannot be removed from selects, whichever it he since cannot proper county,” characterized as “not so as to entitle the change defendant to a of venue under section 9097. The same expressly provide will be which true contracts for performance. immensely greater But for the number con- express, expressly provide traéis which are not or which do not legislative provision for performance, will have gov- nothing venue, to with and the choice of counties will do Perhaps 9096. entirely by erned first of section sentence bench and bar law, should but of Montana’s be the few members now believe that it is law. predecessors
It practically well be that our erred fifty-three venue decisions years, ques- of the last and that if the tions now came before us as impression matters first we should decide otherwise. But if wrong throughout this court been has period with reference to the venue of tort and contract ac- tions, the errors include the unanimous decision this made Greene, only eight court ago months 481, v. Maio Mont. (2d) proper which held that county” “the for the trial of a tort action was the “where the tort com- was mitted.” controversy The record in that case showed without Missoula, parties plaintiff that all defendant resided county and that at least one of the there. defendants was served But litigants neither nor courts considered residence of relevant, as and this court held that the ease should be removed county, alleged Lake where the tort com- was to have been mitted. If majority correct, decision above is under section proper place county (1) trial was where the de- resided, county, (2) fendants which Missoula was or where the plaintiff found, resided and at least one of the defendants was again county, (3) was Missoula was com- where tort mitted, county. view, Since, which was Lake under that Mis- proper county soula was a trial for under both the first provisions and second of section it must have been error trial; remove the cause to Lake statutes do- proper county not authorize the transfer from one another except under the three section Revised last subdivisions of Although the Codes, applicable to the case. which were not undersigned Greene, con- wrote the decision Maio question in without or comment court curred entire mo-, Certainly now constituted. if the individual views of mentary majority court, principles- rather than established de- precedents, govern coming each before it for are to case cision, rely upon and bar are consist- entitled to some bench eight months. ency views for at least or nine those individual justified I here from quoting Under the circumstances feel *26 Mr.. dissenting opinion by Roberts, a concurred in Mr. Justice Frankfurter, who, say least, hardly Justice can con- a precedent. sidered fanatical stickler for In Mahnich v. South- ern Steamship Company, promulgated 64 S. re- Ct. as cently January 31, 1944, dissent said: resulting overruling
“The evil from earlier de- considered present case, cisions must be evident. In the below the court naturally apply clearly felt bound to and an- follow the law as litigants nounced this court. If and lower federal courts so, do govern the law not a a becomes chart to conduct but game chance; rights and un- settling instead of liabilities it bring settles'them. ac- prosecute Counsel will tions in the teeth of the that such decisions actions are not main- improbable tainable on the not chance that the asserted will rule be thrown overboard. liti- Defendants will not know whether to gate or to settle for will have no assurance a declared rule will be deplorable consequence followed. But the will more inevitably justice be that the administration of will fall dis- into repute. Respect fall for tribunals must when bar public nothing come to understand that that has been said prior adjudication has in a current controversy. force ‘‘ may grow changing Of the law meet I course conditions. do authority not advocate slavish adherence to where new condi- require tions new rules of conduct. But this is case. not such a tendency disregard precedents like the decision of cases present my strong as, has become so in this court of late view, consistency confidence in shake decision and leave difficulty courts below on uncharted of doubt and sea yesterday without confidence that what was said hold will * * good tomorrow, question While the in the Mahnich case was substantive rather procedural, disregard than what was there said about the precedents fully applicable here here. addition we have present majority completely reversing the unusual spectacle year, doing way it in un- itself less than a as to settle, definitely resettling, separate law. without Hence this dissent.