Opinion
March Term, 1864
Geo. W. Cothran, for the appellant.
James S. Gibbs, for the respondent.
It was not denied on the trial of this cause that the note on which the suit was brought was negotiated at a rate of interest illegal, both in Connecticut and New York.
The main question in the case is, whether the laws of New York or Connecticut are to control as to the defense of usury. The note was negotiated in Hartford, but was payable at Lockport, in New York.
Nor can it be denied that a contract is to be governed by the laws of the place where it is made, if it is not to be performed according to the terms of the contract elsewhere. (Story on Conflict of Laws, § 282; 6 Paige, 230; 2 Kent's Com. 457; Davis v. Garr, 2 Selden, 124.)
But if such note or contract is by its terms to be performed in another state, then the laws of that state must govern. (2 Kent's Com. 460.) This rule was laid down by this court in Jacks v. Nichols (1 Seld. 178). The court in delivering the opinion, says: "Concede that the contract was made in Connecticut, if it was to be performed in New York, it must, prima facie, be regarded as having been made with reference to the laws of New York." The fact that the note was dated in New York, is alone presumptive evidence that the maker not only resided at the place of its date, but contemplated payment there. For the purpose of charging the endorsers, the makers must have been sought at their residence or place of business in this state. The same is stated in Curtis v. Leavitt (15 N.Y.R. p. 9-227), where it is said: "It is a general rule that the law of the place, where contracts purely personal are made, must govern as to their construction and validity, unless they are to be performed in another state or country, in which case their construction and validity depends upon the law of the place of performance." In Bowen v. Newell ( 13 N.Y. p. 290), it was held that the law of the place where the note or draft is payable, governs as to the days of grace allowed upon it. In Everett v. Vendryes (19 N.Y.R. p. 436), it was held the law of the place where the bill was payable, controled as to the liability of the drawer to the indorsee. And in Cutler v. Wright (22 N.Y.R. 472), it was held that a note made in New York, but dated in Florida, and payable there, was governed by the laws of that place; and it is said the authorities do not leave this question in doubt. The same was also held in Pomeroy v. Ainsworth (22 Barb. 127).
These cases from our own courts, render it unnecessary to examine any other class of decisions upon this point.
The judgment should be reversed, and a new trial ordered.
DAVIES, J. read an opinion in favor of affirmance. SELDEN, J. was absent.
All the other judges being for reversal, judgment reversed.