Dickinson v. Edwards

This action is brought against the defendant as the maker of a promissory nóte. He did write and sign the note and put it in the hands of the payees named in it, for their use. This is the form of it: i

“New York, November 14, 1874.—$300.—Three months after date I promise to pay to the order of Messrs. Bailey & Gilbert three hundred dollars, at the New York National Exchange Bank. Value received.”

His defense to the action is that the note was made by him for the accommodation of the payees named in it; that it was by him loaned to them, without any consideration received by him from them ; and that it was transferred by them to the assignor of the plaintiff at a greater rate of discount or interest than that lawful in this State. The facts of the case sustain these allegations of his defense. It is also a fact that he signed the note at the city of his residence and place of business, in this State ; that it is dated there ; that it is made payable there; that it was put in the hands of the payees there. Nor is there anything to show that the maker knew or intended or contemplated .that it was to be taken out of this State for its first use.

Upon these facts arise the questions of law, in which State was the note made ? and' if it was made in the State of Massachusetts is it not valid everywhere % It may be granted that the note was made in Massachusetts, and that if the law of the place of execution is to govern, that the note is valid and enforceable in this State.

It would seem, at first sight, at least, that the latter of these questions had been settled in the negative by this court. Jewell v. Wright ( 30 N. Y. 259 ), was an action on a promissory note signed by Wright in this State, to the order of Dunlap, who wrote his name upon the back of it in this State. The note was by its terms payable at a bank in this State. It was put in the hands of Taylor in this State for his accommodation without consideration from him therefor. Taylor took it into the State of Connecticut, and got it discounted there at a rate not lawful in this State. It does not appear that Wright or Dunlap knew or intended or thought that Taylor would take it out of this State to make the first use of it in Connecticut. Thus the case is the brother of that before us. In one feature of it, it is not like—the rate of discount was unlawful in the State in which the note was first used, as well as in this State. But, as will appear further on, this difference was not material, and the questions of law were the same as those at which we are looking. Judgment went for the plaintiff, the holder of the note, in the courts below, but it was reversed in this

It is said, however, that the case of Jewell v. Wright has been so much questioned by bar and bench as not to be a reliable precedent. One criticism upon it is, that as the note there was obnoxious to the usury laws of Connecticut as well as of New York, there was no need of the reasoning of the opinion resting the judgment upon the rule that the law of the place of performance must govern, and that hence the opinion rendered was obiter. This criticism is not well founded. The usury law of Connecticut is not as fatal as that of this State. By the law of that State the contract is not utterly void, but void only as to the whole interest reserved or taken (Fisher v. Bidwell, 27 Conn. 363 ). So that, though the opinion in Jewell v. Wright starts with saying that the note was negotiated at a rate of interest illegal both in Connecticut and New York, it is correct in further stating the main question in the case to be whether the laws of the former or the latter State are to control as to the defense of usury. In the one case, the plaintiff would lose only a sum equal to

W e must say, then, in the case before us, whether we will follow Jewell v. Wright, as an authoritative adjudication binding upon us, or whether it is so plainly unsound in its declaration of what is the law and in its application of it to the facts there shown, as that it should be overruled, and the proper rule for a like state of facts be now put forth. The rule declared in that case is that a personal contract is to be governed by the laws of the country which is named in it as the place for the performance of it. And in stating this as the rule, it was conceded that the law of the place where the contract is made governs the contract when it is not by its terms to be performed elsewhere. This concession might have been made with a limitation, for no State is bound or ought to enforce or hold valid in its courts of justice a contract which is injurious to its public rights, offends its morals, contravenes its policy or violates a public law (2 Kent Com. 458; Varnum v. Camp, 1 Green [N. J.], 326).

But passing that, this court, in Jewell ®. Wright, announced not a new principle or one that is not now prevalent. The general rule is and has been that where the contract either expressly or tacitly is to be performed in a given country, then the presumed intention of the parties is that it is to be governed by the law of the place of performance as to its validity, nature, obligation and interpretation (Story Confl. of Laws, § 280, citing Andrews v. Pond, 13 Pet. 65 ; and 9 N. Y. 53 , citing Holman v. Johnson, Cowp. 341).

This rule has been specially applied to the rate of interest to be allowed, and it has been held that where a personal contract is expressly or by implication to be paid at a given place, and the rate is not fixed by the parties, interest is to be taken or reserved according to the law of the place where payment is to be made (Fan

It is said that such a rule of construction will not be applied if it will render the contract illegal, for that construction will be given to a contract which will render it valid, if it can be reasonably done (Brown v. Bradley, infra).

But this remark has no application to the case in Jewell v. Wright, or to that before us. There and here no question comes up of the rate of interest to be allowed upon a clause in a contract expressly providing for it, and for the rate of it. There and here the note was silent as to interest, and the rate adopted on the negotiation of it was more than the law of the place of performance allowed. Hence, the only indication which the contract gives of the mind of the maker as to the rate of interest is in the phrase which specifies the place of payment, and the indication from that is of a rate lawful at that place.

Nor did Jewell v. Wright go to judgment without reliance upon authority. Jacks v. Nichols ( 5 N. Y. 178 ) states, as a ground of the decision in it, that the contract was to be performed in this State (see p. 185); so Curtiss v. Leavitt ( 15 N. Y. 9 , 227) recognizes the rule; and Cutler v. Wright ( 22 N. Y. 472 ) is much in point. The note there, made and delivered in New York, reserved, in terms, interest at the rate of eight per cent.; but as it was dated and made payable in Florida it was held to be a Florida contract, and not to be governed by' the laws of this State on a defense of usury.

It is claimed that Jewell v. Wright has been so seriously questioned as to impair its authority, and to throw doubt upon the soundness of the rule it gives out; and that there are adjudications which stand in opposition to it. It is proper to look at the cases which are thought to have that effect.

The most prominent is that of Tilden v. Blair ( 21

Another case is Bank of Georgia v. Lewin ( 45 Barb. 340 ). It does not refer to Jewell v. Wright, much less question it. Indeed, the opinions in the two cases are from the same judge. The same fact is in it as in Tilden v. Blair—that it was the purpose of all parties to the draft, when they made and accepted it, that it should be first used in another State than this, wherein it was made payable, and that the place of payment named in it might be inferred tó be incidental and not essential.

Bowen v. Bradley (9 Abb. Pr. N. S. 395), decided in a court inferior to that which gave the adjudication in Jewell v. Wright, yet deliberately disregards it and pronounces it contrary to law, to sound reason, and the necessity of commerce. There was room in Bowen v. Bradley for the same reason that controlled the decision in Tilden v. Blair, and the case might well have gone upon the ground that both the maker and indorser of the note knew and meant that it would be first used in Illinois, and in accordance with the laws of that State. But the court chose to put it upon the ground that the law is different from what it is declared in Jewell v. Wright. This conclusion is sought to be sustained by reason and authority. It is first declared that this court failed to distinguish between the principles by which the validity of purely personal contracts is to be tested, and the rules which have been

Bowen v. Bradley then proceeds to state what are the rules of law as to the validity of a purely personal contract. First, that if valid where it is to be made and performed, it is valid everywhere ; which may be conceded. Second, if it be made in a State or country where it would be lawful to do all the acts which are agreed by it to be done, but provides that one or more of such acts shall be done in another State or country in violation of its known laws, the courts (at least of the latter) will not enforce the contract. It then proceeds to state rules of interpretation. First, that such contracts are to be construed according to the intention of the parties. Second, that if a different intention is not apparent, the intent will be declared to be according to the law of the place of performance, and that thus the law of the place of performance is silently incorporated into the contract; and as an example it is said, if a note payable with interest, without naming the rate, is made or delivered in one State, by its terms payable in another State, the note, by force of the rule of interpretation, is to be paid at the rate of interest of the State where payable. The opinion then holds that such a construction would not be admitted if it would make the note invalid.

Now, a reading of these rules by the side of the facts of the case fails to show an error in the decision in

That payment was then an act in known violation of the laws of this State, and why then should the courts of this State enforce the doing of that act %

The contract in Jewell v. Wright and in our case makes apparent no intention of the maker for a greater rate of interest than that lawful in this State. In neither contract is the matter of interest named. Is not, then, the place of performance named in it the place whose law must be presumed to have been in the intention of the makers as that which should control the rate to be taken 1 There can be no pretense that the meaning of the parties was not well expressed in the note in Jewell v. Wright, and was not to be fully understood therefrom in respect to the thing to be done and the place where it was to be done. It was to pay ' a certain sum of money at a bank in the city of Lock-port, in this State. But it must be lawful to do, that thing there, or the law of this State would not permit it, nor would its courts enforce it. It was not lawful there to repay money for the loan of which a greater rate of discount was taken than seven per centum per annum. Plainly the plaintiff in that case sought from the defendant, through the courts of this State, that he do an act which he was forbidden to do by our law. When the assignor of the plaintiff discounted the note, he knew that he took an agreement to do that act in this State, and he was bound to know that it was an

It would be a novel and startling doctrine that the usury laws of a State could not be violated by a transaction agreed upon outside its bounds.

Bowen v. Bradley seeks support in the case of Kentucky v. Bassford ( 6 Hill, 526 ), and the same case is cited on the points of the plaintiff in our case and at the circuit. That case goes, however, upon the expressed ground that whether the bond sued upon was made in Kentucky or New York, the performance of it was to be made in Kentucky, and that in such case the construction and effect of it are the same as if it had been made in that State. Nor does Hyde v. Goodnow ( 3 N. Y. 526 ), or Merchants’ Bank v. Spalding (9 Id. 53), put forth any rule differing from that in Jewell v. Wright.

Neither the discussion in Bowen v. Bradley nor the authorities cited there show error in the rule put forth in Jewell v. Wright. Citations are made to show that the judge who delivered the opinion in Jewell v. Wright joined in decisions claimed to be irreconcilable therewith (45 Barb, supra). If there be any weight in that, it is neutralized by his later citation of Jewell v.

Another case is Wayne County Savings Bank v. Low (6 Abb. New Cas. 76). The opinion in that case does not profess to add much to the reasoning of the court in Bowen v. Bradley (supra). There is the same assumption that the decision in Jewell v. Wright was ■ hasty and ill-considered; an assumption unwarranted in the face of the fact that there was a dissenting opinion read in it; whence it is apparent that both sides of the question were presented, not only upon the argument of the case, but upon the consideration and discussion of it by the court. The opinion in 6 Abb. New Cas. (supra) concedes that where no rate of interest is fixed by the contract the rate is that lawful in the place of performance, but denies that this is the rule in respect to taking usurious interest. We cannot but think that the learned court ignored what is the conceded general rule, that the place fixed by the contract for the performance of it is an essential part of the agreement, and gives the law which is to determine its validity. A note payable in New York, naming no rate of interest, is discounted in Massachusetts at a rate usurious and unlawful in New York. If the maker pays that note in New York, and the holder receives payment there, usury is given and taken, an act is done by them unlawful in New York, malum prolvxbitum, and for which the penalty of a misdemeanor is incurred. It matters not where the contract is made, it is agreed that it be carried out in New York; and thus it is, at the time of the making, agreed that an act shall be done in violation of the law of the

We refrain from any consideration of the facts in the case from 6 Abb. New Cas., for we know not but that it is on its way to us for review. There may be matter in it to distinguish it from Jewell v. Wright, and from the case before us.

In Providence County Savings Bank v. Frost (13 Nat. Bank. Reg. 356), the maker of the note himself sent it into the other State for discount there in accord with its laws, and it is upon that fact that that case went, and the judgment is based upon Tilden v. Blair (supra).

The case of Scudder v. Union National Bank (91 U. S. [1 Otto,) 206), does not establish anything contrary to our views. The question there was, what jurisdiction should be sought for the law of the validity of a contract, when the validity of it was dependent upon the formalities alone with which it was formed. It was held that the lex loci contractus gave the rule, yet it was conceded that the law of the place of performance governed the incidents of payment, including that of the rate of interest, when it was not specified. Some things are said in the opinion which, apart from the facts, seem to go further.

These are all the cases brought to our notice in which adverse comment is made or implied upon the decision in Jewell v. Wright. The reasoning of them, in our judgment, fails to touch, or touching, does not shake that of the case criticised.

But it is claimed that that case is contrary to the following authoritative adjudications in this State. Hosford v. Nichols (1 Paige, 220) holds only that a contract for sale of lands in this State, made in this State, reserving interest at a rate lawful here, silent as to the place of performance, may be performed, in fact-,

Chapman v. Robertson (6 Paige, 627) is a case often cited and relied on, but it does not impugn the general rule that the validity, of a purely personal contract is to be tried by the law of the place of its performance. The learned chancellor concedes that the case would come clearly under that principle, if the contract in. suit had been only the personal contract of the defendant ; but he holds that as it was a mortgage actually executed here, by a resident here, upon lands here, for moneys loaned to be used here, although to be repaid elsewhere, the law of the State would fix the legality of the rate of interest reserved ; and that the further reasons that the contract was partly made here, actually in reference to our laws, with an appeal to our courts contemplated by the parties if necessary.

The opinion in that case has not escaped criticism. “If viewed as the chancellor interpreted the case, it is perhaps irreconcilable with other cases and with general principles” (Story on Confl. of Laws, § 293, c). “ It appears to me that the case was correctly decided, but . . . upon principles and expositions to which I cannot assent, and which appear to me inconsistent' with the general reasoning of the authorities ” (Id. note 3. See, also, Curtiss v. Leavitt, 15 N. Y. 88 , 228).

Pratt v. Adams (7 Paige, 615, 636) holds, in effect, that a contract for a loan of money may stipulate for a rate of interest lawful where the contract is made, though greater than that where it is to be performed, if it was not a means of evading the usury law of the place of performance. This is not the case before us, ñor the case in Jewell v. Wright. The maker of the note in these cases expressed no such stipulation in his

There is nothing in Cook v. Litchfield, 9 N. Y. 280 ; Hyde v. Gloodnow, 3 Id. 271; Lee v. Selleck, 33 Id. 615, which militates with the reasoning or the conclusion in Jewell v. Wright.

Citations are made from the reports of other States and from text-books. With the exception of Depau v. Humphreys (8 Mart. N. S. 1), they make rather for than against the principles stated and founded upon in Jewell v. Wright. Thus, in Peck v. Mayo ( 14 Vt. 33 ) it is said that it is an elementary principle that all the incidents pertaining to the validity and construction of contracts will be governed by the lex loot contractus, which term may indicate where the contract is virtually made according to the intent of the parties—that is, the place of its performance—and that the general rule is that the latter is the governing law of the contract. That was a case where the inquiry was, what law of interest should determine what damages were recoverable. So in Pope v. Nickerson ( 3 Story, 465 ), it is said that in general, the nature, the interpretation and the obligations of contracts are to be governed by the law of the place in which they are to be performed.

Depau v. Humphreys (supra) was cited and approved of by the chancellor, in Chapman v. Robertson, but is condemned by Story (see Confl. of Laws, § 298 et seq.).

We find nothing in the citations made to us, nor elsewhere, that shakes the general rule of law of this State, that a purely personal contract is to be governed by the law of the place where by its terms it is to be performed. We find that some cases have set up exceptions from that general rule. It is not needed that ' we assent or dissent. None of the exceptions are found in Jewell v. Wright or in the case before us. We are satisfied that the ground is stable on which the adjudi

The judgment herein appealed from should be affirmed.

All the judges concurred, except Rapallo and Dahfoeth, JJ., dissenting.