construing the words “in the county in which the contract is to be performed” to refer only to contracts that expressly indicate a place of performance
How later courts described this case
- construing the words “in the county in which the contract is to be performed” to refer only to contracts that expressly indicate a place of performance
- “It is the policy of the law of this jurisdiction that all transactions affecting the title to real property shall be matters of record in the county wherein the real property is situate [sic] to the end that those concerned may ascertain the condition of such title by an examination of the public records of the particular county wherein such real property is located.”’
Written by the judges who cited it.
The opinion
MR. JUSTICE ANGSTMAN:
(dissenting).
Here the written contract provided that the deed and other legal papers be held in escrow at the Security Trust & Savings Bank of Billings and that “payments will be made there.”
*188 It also provided that the vendor shall “deposit with the Security Trust & Savings Bank at Billings” a deed legally sufficient to vest title in the vendee.
Hence the contract by its terms was to be performed in Yellowstone County.
We have repeatedly held that even though the contract be silent as to place of performance it is properly triable in the county of the creditor’s residence (here in Yellowstone County where plaintiffs reside) under the latter part of section 93-2904. Electrical Products Consolidated v. Goldstein, 97 Mont. 581 , 36 Pac. (2d) 1033 , and cases therein cited.
Certainly Yellowstone County is the proper county for the trial of the action where as here the contract by its express terms was performable in that county.
Defendants have not sustained the burden of showing that the contract sued on was not to be performed in Yellowstone County where the action was commenced. Johnson v. Ogle, 117 Mont. 419 , 159 Pac. (2d) 337 .
In no sense is this an action involving title or right of possession to real estate.
The complaint, while not a model for certainty, shows nevertheless that the action is to recover the alleged agreed purchase price of real estate.
Defendants seek to avoid the obligation to pay the purchase price because plaintiff is alleged not to have complied with his part of the agreement. The case of Heinecke v. Scott, 95 Mont. 200 , 26 Pac. (2d) 167 , relied on in the majority opinion is not comparable to this because the complaint in that action sought to remove a cloud on title and to enjoin defendants from asserting any claim in or title to certain described real estate and hence was clearly a case involving title to real estate.
One of the grounds of the motion for change of venue was that of the convenience of witnesses.
That question will not be considered until after an answer is filed and the case is at issue so that the court can determine whether certain witnesses are necessary and whether their tes *189 timony will be material. Maio v. Greene, 114 Mont. 481 , 137 Pac. (2d) 670 , and eases therein cited.
It is true that the affidavit in support of the motion sets forth facts which it is fair to assume will be the basis of defendants’ answer. But these fact allegations may be admitted in the reply or otherwise avoided and hence at this stage of the case the court is in no position to pass upon the question of the convenience of witnesses.
I think the order granting the change of venue should be reversed.