Thomas v. Cloyd

Venue ? Change of Place of Trial ? Action on Contract ? Burden on Movant ? Place of Performance in Alternative ? Generally Election of Place in Promisor ? When Right to Elect Passes to Promisee. Venue ? Actions on Contract must, not may, be Tried in County Where to be Performed ? Statute. 1. Section 9096, Revised Codes, in providing that actions on contract "may" be tried in the county in which the contract was to be performed, held to mean "must" be tried in such county. Same ? Change of Place of Trial ? Burden of Establishing Right to Change on Movant. 2. The burden of establishing the right to a change of venue is upon the movant. - Page 344 Same ? Case at Bar ? Place of Performance in Alternative. 3. Where defendant, a dentist residing in Park county, entered into an agreement with plaintiff, a resident in Silver Bow county, to the effect that if the latter would quit his job he would place him in a dental laboratory in a city in Silver Bow county or in one of two cities outside the state, for the purpose of learning the business, and pay him a certain amount as expenses, but failed to place him in either city, the place of performance was in either Silver Bow county or in one of the outside cities but in no event in defendants county, and therefore the latters motion in plaintiffs action for breach of contract brought in Silver Bow county for change of venue to Park county on the ground that the agreement was to be performed there, was properly denied. (See rules infra.) Same ? Place of Performance in Alternative ? Right of Election of Place in Promisor ? When Right Lost. 4. Where the place of performance of a contract is in the alternative, ordinarily the promisor may elect what act he will perform, the obligation being discharged by the performance of either of the enumerated acts; and if one contracts to do one of two things by a given date and allows the day to elapse without performing either, his right of election is lost; and if a given date is not stated, the expiration of a reasonable time has the same effect. Same ? When Right of Election Passes to Promisee. 5. For the purpose of determining the venue of an action on a contract embodying alternative promises performable in different places (see par. 3, supra) or counties, where the promisor fails to exercise his election to perform any of them and is sued for breach of the contract, the right to select the place of trial is in the promisee, irrespective of the contention of promisor that, the place of performance having been in his county, the cause should be tried there.