*1 LOVE, v. MON-O-CO OIL Plaintiff Respondent, Appellant. CORP., Defendant No. 9624. January Submitted November 1957. Decided 1958. 319 Pac. 1056. Brown, Brown, Jr., & Rockwood Billings, Sande Forbes and appellant. Harris, Williams, & Church, Falls, Johnson Great for re- spondent. TAYLOR, Judge, sitting
THE HON. WILLIAM R. District BOTTOMLY, MR. place JUSTICE because of the lat- illness, opinion of delivered the the court. ter’s Defendant, corporation, Corporation, ap- Mon-O-Co Oil from, its denying order motion for pealed an County to Yellowstone of trial from The defendant, Mon-O-Co Oil entered into Havaland, whereby written Trustee, contract with Paul an oil gas covering forty lease in Fallon was sold acres assigned Havaland, Paul Trustee, Mon- *2 O-Co Oil Corporation, agreed Havaland, with the said Paul Trustee, to drill an oil well on land. In addition to the said oil gas and lease defendant, sold and Oil assigned, Mon-O-Co Corporation, owned gas covering oil and an additional leases 6,120 acres in County, which, contract, in said and ex- cepting eighty acres, therefrom it agreed assign also to sell and to Paul Havaland, Trustee, completed should a well be as a produceer commercial gas forty of oil and on the acres sold assigned; and that the terms and conditions of the sale of said by lease defendant, Corporation, Mon-O-Co Oil to Paul Hava- land, Trustee, operation and for the drilling land, on said were set forth specifically in agreement. defendant,
The Oil Corporation, Mon-O-Co then entered into agreement a written plaintiff, lease with I. Love, whereby W. agreed defendant, Love to drill the well that Mon- Corporation, O-Co Oil had drill contracted to for Paul Hava- land, agreement Trustee. said Corpora- Mon-O-Co Oil tion from plaintiff, Love, rotary leased I. W. certain drill- ing monthly equipment rental, employed at a plaintiff, and I. Love, specified monthly wage 'W. at a supervise to the drill- ing operation. addition, defendant, Corpo- Mon-O-Co Oil ration, agreed plaintiff, Love, per- to deliver to I. W. certain centages royalty working of the interests that was to derive Havaland, from its contract with Paul Trustee.
All required performed by of the acts to be plaintiff, I. W. part Love, of the contract entered into with the defend- ant, Corporation, were to be in Fal- defendant, lon Corporation, The Mon-O-Co Oil is a corporation, principal Montana has its Billings, office at Baker, but had a division office at seat of Fallon County. At the time contracting plaintiff, with the I. W. Love, Corporation, Mon-O-Co Oil part and as contract, pay to for costs agreed said the consideration for equipment Love’s, drilling transporting plaintiff, I. W. to insure such Washington, well-site, Centraba,
from to the licenses, bens owed equipment, pay taxes, to certain and, make plaintiff, Love, Washington, I. W. State of resident of Love, to a payment plaintiff, a note owed I. W. on the drill- mortgage Oregon, which was secured a chattel ing royalty working interests were equipment. The pro- plaintiff, I. did delivered W. Love. contract Love, payment plaintiff, I. W. vide where was to be made to monthly by defendant, Corporation, Mon-O-Co Oil monthly salary drilling equipment, and for the rental Plaintiff, Love, W. in his by plaintiff, I. earned Love. opposition motion for affidavit filed to the made trial, agreed payments stated him were to be by defendant, Mon-O-Co Oil County, accordingly payments made in Fallon were *3 him in Fal- by defendant, Corporation, to made Mon-O-Co Oil lon first causes of action. complaint states two
Plaintiff’s producer a alleges completed was as that a well of action cause in- 15, 1954, and that defendant about November on or drilling the as rental of certain sums plaintiff for debted to agreement, the paid under lease expenses to be equipment, for royalty overriding interests to certain and that he is entitled by the royalty interests reserved overriding out of defendant’s Havaland, Trustee. Plain- Paul with defendant its contract per- the rentals and for a sum certain for judgment prays tiff exe- ordered to make and services, that defendant be sonal and overriding him an assignments of and sufficient good cute both of which working agreement, in a an interest royalty and defend- entered into between for in the contract provided were Trustee, Havaland, Corporation, and Paul ant, Mon-O-Co Oil plaintiff agreement entered into between lease and in the action, alleges plaintiff second cause of In the and defendant. plaintiff and defend- agreement by made that the written lease whereby test well completion of the ant was amended before to, give agreed defendant, Mon-O-Co Oil all carry out accept, do, and plaintiff, right to Love, I. W. lands leased drilling future on all of defendant’s operations Trustee, Havaland, agreement in its Paul described with of- as were compensation on the terms and for the same same agree- said contractor; that in of fered other violation into drill- Corporation, entered ment, defendant, Mon-O-Go Oil giving plain- ing others, on without contracts said lands with doing, tiff, refusal; and, that so right of Love, damaged. change of Defendant, Corporation’s motion for place following grounds: trial of based on action,
1. That at this the time of the commencement of County was, is, defendant still resident of the of Yellow- stone, Montana, of the district court of said State proper is the trial the above-entitled court for the of cause. plaintiff’s com- contracts, any, alleged if
2. That plaintiff’s plaint, purport to form the basis of and which any place where action, provide of state or causes fail to that at time of the such contracts were is, action, was, this and still a resi- commencement of defendant Yellowstone, Montana, of and that County State dent of the of proper is the court for the the district court of said trial of the above-entitled cause. action, alleged of as set forth and
3. That one of causes transitory na- plaintiff’s complaint, equitable an is of governed residence ture and therefore County, Montana; to-wit: Yellowstone action, was, the time of commencement this Yellowstone, is, resident State still *4 county said Montana, and that the district court of proper court for the trial of the above-entitled cause. 93-2904, 1947, that portions
The of section R.C.M. are of all in this decision are: “In other cases the action concern 60
shall be of them, tried may reside at the commencement of the action in in which defendants, or [*] * Actions contracts be tried in the in which * * contract was to be In the case of State ex rel. Interstate Lumber v. Dis Co. Court, 602, (hereafter trict 54 Mont. 172 1030 referred Pac. to as case), May 1, 1918, this Interstate decided court “may” determined that last appearing the word sen tence in 93-2904, 1947, given section It.C.M. should be force of Hardenburgh “must.” ease of v. Harden burgh, 1944, 469, Mont. Pac. decided in eases, Adair history Justice reviewed the of the statute and the it, repudiated determined under the determination in the “may” Interstate case that the given word should be the force of “must.” Justice Albert Anderson concurred in Justice opinion, Adair’s and Justice Morris concurred in result case, in there of the but not all that was said. Chief Justice separate opin dissenting Johnson and Justice Erickson wrote they approved in which the conclusion reached in the ions case, Ogle, later 117 Mont. Interstate case. Johnson v. (2d) 337, gave in Morris Pac. decided Justice case, Hardenburgh his reason for his decision in the and stated case, approval interpretation made in the Interstate necessary though even was not to make such comment to Special determine issue in the decision then rendered. Angstman Adair concurring opinions Justice and Justice set forth their determination that error had been committed deciding “may” in the Interstate case should have the completely force of “must.” The cases referred to review the problem. resulting confusion to the bench and bar is .apparent.
Upon reasoning opinion found in the Adair of Justice Hardenburgh Hardenburgh, the ease of v. Angstman Ogle, of Justice in the case of Johnson v. is now “may” given word should not be decided the force statute, of “must” said as was done the Interstate case. *5 county the that of statute means either the defend- residence, county ant’s or the the was to be where contract performed, is proper county action, the trial of the for the counties, if either the chooses of those removed, part not as last except have stated in the of said 93-2904, subject power section still of the court to to the place change provided by the of trial 3 and as subdivisions 93-2906, of section 1947. R.C.M. The does require law a parties agree the contract a
upon place performance contract, for the of their but it permits them agree. When, to so at time of the contract ing, parties upon agreed particular county have a where they mutually their intended to be performed, contract was agreement such effect, will be respected given it is for a part freedom of place contract to select the where a con performed. tract be shall give order to full effect to the mutual parties, intention of legislature enacted, has as a permissive exception general to the rule declared in the first sentence of section 93-2904 provision, an additional ap section, pearing designating second of sentence county wherein, parties time contracting, had agreed proper their contract was county trial of an performance action based thereon. This exception, however, only applies to such as are actions based plainly show, (a) express contracts which either their (b) by necessary terms, implication therefrom, or contracting parties, contracting, mutually at the time of did agree upon particular county, other than that of defend residence, they ant’s wherein intended that their contract was performed. to be place performance
The of the contract, entered into be- Love, plaintiff, tween and the was Plaintiff had the choice County. having county action tried of defendant’s resi-
dence, or where the performed. contract to be was He elected have his ease tried in which the performed, judge and the the district
contract properly court motion for denied defendant’s of trial to.Yellowstone judgment of the district court affirmed.
MR. MR. HARRISON, CHIEF JUSTICE JUSTICES ANGSTMAN, CASTLES and concur. ADAIR, concurring.) (specially
MR. JUSTICE *6 in the case agree opinion I this court’s and decision 469, Hardenburgh, of 115 Mont. 146 Pac. Hardenburgh v. 151, instant the trial controlling is here the case properly court of the denied motion for of trial from of County. to Yellowstone 543, 109 Branum, International Travelers’ Ass’n v. Tex. 630, by re- 631, 632, surviving 212 suit to S.W. was a a wife insuring policy on her of insurance cover deceased husband’s against policy him application accidental death. by- on, the itself association’s policy sued and the insurance stipulation that all of action on laws contained a causes policy brought County, Texas, should in Dallas where be office was association contend- association’s home located. The stipulation lay ed, policy, under above its exclusively in In such contention denying Dallas Supreme Court of Texas said: * * * a is presented whether question the real
“So right to sue several counties giving a statute undertaking deprive to him by a contract can be overridden Ins. early Hamilton Mut. case of Nute v. right. of by 174, opinion in an announced Gray (Mass.) Co., 6 that— Chief Justice Shaw
“ counties in what courts and actions determine ‘The rules to general fixed, considerations brought are may be by general law; them to expediency, allow convenience parties disturb the agreement would by changed
63 symmetry law, and interfere with sneh convenience.’
“In Hammer Paper the recent case Nashua River Co. v. D, 691, mill 1916 Paper Co., 8, 678, 223 Mass. 111 L.R.A. N.E. says the court with reference to the Ñute Case: “ ‘That a case, pointed out, general prin- as has been states ciple courts, adopted which has been in all federal prevails binding Supreme reason-of the decisions of the United States Court in Morse, 445, Home Ins. Co. York 20 of New v. Wall. 22 L. Doyle Ed. 94 Co., v. Continental Ins. U.S.
24 L. Ed. prevails generally 148. The same rule in all states question where the has arisen.’ pages
“The note on fully 702 in L.R.A. 1916D sup- ports the court’s Supreme statement. The Court of the United States concluded that principle there no sound on which agreements like upheld, saying: that before us could be “ ‘Every citizen entitled resort to all the courts the country, protection invoke the which all the laws or all may those courts afford A him. man not barter away life, his freedom, rights. or his or substantial a case, criminal cannot, Case, he was held Cancemi’s N.Y. jury be tried in other than manner men, although he in open consent court jury to be tried *7 of 11 men. In may a civil case he submit his particular suit by his own consent arbitration, to an or to the decision of a single judge. may So he right omit to exercise his to remove suit tribunal, to a federal fit, as often he thinks in each recurring aspects any case. these may citizen no doubt rights waive the to may which he be entitled. cannot, He how- ever, bind himself in an agreement, may advance which be specifically enforced, rights thus forfeit his at to all times and on all occasions, whenever the case presented.’ Insur- ance Co. v. Morse, 20 Wall. [445] 22 L. Ed. 365. “The Appeals United States Circuit Court of of the Sixth Circuit, in Mutual Reserve Fund Life Ass’n v. Cleveland Woolen Mills, 82 F. [508] 27 C.C.A. [212] per Judge Lurton, said:
“ ‘Any stipulation parties distinguish- contracting- between contrary is ing country between the different courts public policy, and should not be enforced.’ public policy utterly against
“We are that it is convinced permit bargaining depriving in state about courts of this jurisdiction, statute, expressly particular over conferred of action and Eaton v. International Travel- causes defenses. Dallas, App., ers’ Ass’n of Tex. 817. It fol- Civ. S.W. county stipulation that the in Dallas lows for exclusive venue enforced, will not be and that court did err in over- plea sued in that ruling asserting privilege ’’ alone. Super-Cold Romans, Tex. Civ. Southwest v. Green & Co. App., (2d) 749, 752, 753, at said: pages S.W. error assigned there was group of errors contend
“Second
in
provisions
overruling
privilege
because of
plea
in
growing
all
out of
the effect that
actions
the contract to
there
further
had in Dallas
contract should be
part
cause of
jury finding
any
plaintiffs’
was no
the facts
County. It is
from
in Tarrant
obvious
action arose
plaintiffs to con-
defendant contracted with
in the record that
Mansfield, Texas; and
plant at
storage
a cold
locker
struct
County. The
and obli-
in Tarrant
contract
that Mansfield is
anywhere
performed
have
else.
gation could not
been
‘Proposal’
made
written instrument called
‘Name and
Cold
these words.-
location
Job:
begins with
Grocery
in
Green
Store located
Storage
plant
Locker
There is a conflict
the evidence as
Mansfield, Texas.’
actually
by the
signed
were
the different
instruments
where
consequence.
think this
no
parties, but we
St.],
Ann.
“Exception 23 to Article
Civ.
[Vernon’s
here,
against
provides that actions
applicable
far as
in so
may be maintained
which
corporation
any part
If it
thereof arose.
shown
of action or
cause
in Tarrant
County, was to be
the contract
exception
it falls
this
county,
within
was breached
*8
exclusive
[Citing
provision
venue.
con-
cases.]
tract
the effect that
thereon
be filed
action
shall
Dallas
is not available
to defeat venue
hearing,
provision
this case. In a
similar
where a
reviewed,
Supreme
contract was
that such
Court held
provision
against
public policy
enforced.
and would
International
Branum,
543,
Travelers’
109 Tex.
Association v.
In Duque Duque,
64,
App.,
(2d) 63,
page
v.
Cal.
317 Pac.
at
appellate
court said: “It
against public policy
would be
permit parties by
private agreement
deprive
a court of
jurisdiction which is
conferred
statute. 12 Cal. Jur.
(2d) page 295,
95;
(2d) page 603,
section
13 Cal. Jur.
section
Compare
91.”
Electrical Products
Goldstein,
Consolidated v.