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Lodge v. Phelps

1 Johns. Cas. 139 Court N.Y. Sup. Ct. English

Contents

Majority

p. 167
Lodge against Phelps.[1]

Headnote

Personal contracts just in themselves arid lawful in the place where they are- • made, are to be fully enforced according to the law of that place, and the intent of the parties.
But the lex loci contractus is not to govern as to the mode of enforcing contracts. ' '
Therefore the-endorsee of a promissory nóte given in Connecticut, where promissory notes are not negotiable, may-maintain an action in his own name in this state, against the maker.
Thís was an action of assumpsit, brought by the plaintiff as' endorsee of a promissory note, made by the defendant to one Lloyd, and payable to him or order, dated at Suffield in the state of Connecticut. The plea was the general issue.
On the "trial, before Mr. Justice Kent, at the sittings in New York, after July term, 1798, the plaintiff proved the hand-writing of the maker and endorser, and there rested his cause.
The defendant then proved, that by the laws of Connecticut, where the note was made, promissory notes (except ; bank notes) were not negotiable, so as to entitle the assignee to’bring a suit in his own name, and that they remained ‘on the same footing as choses in action at the common law; he insisted that the law of Connecticut ought in this respect
p. 168
to govern, and that the plaintiff, therefore, was not entitled to recover in this action. It was admitted, that [*140] *the payee of the note at the time of its date, and the plaintiff at the time of the endorsement, resided in the city of New York.
Upon this'evidence a verdict was taken by consent for the plaintiff, subject to the opinion of the court, reserving also the question as to the admissibility of the evidence on the part of the defendant under the present,issue..
Three points were made on the argument; 1. By what law the contract was to be governed.
2. If by the law of Connecticut, whether it should, affect the form of action.
3. If the court should be. of opinion with the defendant on the preceding points, whether the evidence on. his part could be admitted under the general issue.
B. Livingston, for the plaintiff.
Harison, for the defendant.

That personal contracts just in themselves and lawful in the place where they are made, are to be fully enforced according to the law of that place, and the intent of the parties, is a principle which ought to be universally received and supported. Butthip admission of the lex loci can have reference only to the nature and construction of the contract and its legal effect, and not to the mode of enforcing it; for every country must and will have modes of redress and judicial proceedings peculiar to its own jurisprudence, and is entitled to administer justice under the solémnity of its own forms. (2 Ersk. Inst. 473, 474, 475.. 1 Bro. P. C. 41. 1 Black. Rep. 237 , 238, 258. 7 Term, 243. l Bos. & Pull. 142. 1 Emerigon, 122. Huberus, lib. 1 tit. 31. Harg. Co. Litt. lib. 2, n. 44.)[1]

(a) (a) Add Smith w Smith, 2 Johns. R. 235. Ruggles v. Keeler, 3 id. 263 . Thomson v. Ketcham, 4 id. 285 , 8 id. 188. Scoville v. Canfield, 14 id. 238. Van Rough v. Van Arsdale, 3 Caines’ R. 154, Whittemore, v. Adams, 2 Cowen, 626. Pearsall v. Dwight, 2 Mass. R. 84 , Warder v, Arell, 2 Wash. C. C. R. 282, and cases cited in Van Reimsdyk v. Kane,. 1 Gallis. R. 371. That thp remedy upon a contract must be pursued according to the lex fori, *169 and not the lex loci co ntractUs, in addition to the foregoing authorities, see Dixon’s Ex. v. Rumsay’s Ex., 3 Cranch, 324 . Nash v. Tapper, 1 Caines’ R. 402. Smith v. Spinola, 2 Johns. R. 198. Bird v. Carital, id. 342 . Sicard v. Whale, 11 id. 194. Titus v. Hobert, 5 Mason, 378.

p. 169
It is not material, therefore, to decide whether the law of Connecticut, where the contract was made, or the law of New York, where it was to be paid and performed, as has been contended, ought to govern. There can be no good reason why the plaintiff in either case, should not be permitted in our own courts to avail himself of a remedy prescribed by our laws, and sue directly in his own name, instead of being compelled to use the name of the original payee.' If the defendant had any defence entitled to be made here, as being authorized by the law of Connecticut, and the contract were to be governed by that law, he *would [*141] still be permitted to make it, and would be heard in one form of action as well as the other. ■ There is, therefore, no reason to turn the plaintiff round to another suit. Thie precedent would lead to innovation, and to the introduction of a practice wholly unknown in our courts, and hot approved by our law.

It follows that it is unnecessary to determine whether, under the general issue, the defendant could avail himself of a defence arising from the law of Connecticut. His objection to the-plaintiff ’s recovery is founded on the mode of redress only, and not on the merits of a just defence.

Judgment for the plaintiff.