Brown v. Gates

120 Wis. 349

• Court: Wisconsin Supreme Court
• Decided: February 2, 1904
• Status: Published

Opinions

Tbe following opinion was filed November 17, 1903:

Siebeoeeb, J.

Tbe defendant avers tbat tbe notes su.ed ■on by plaintiffs were executed and delivered on Sunday, and •are therefore void in law. As stated, there is no dispute but that tbe notes were signed by defendant on Sunday, January 13, 1895. Tbe jury found they were delivered to plaintiffs on tbe same day. Por tbis reason defendant contends they are void in plaintiffs’ bands. Courts have refused to maintain actions on contracts when made in violation of statutes for .the observance of Sunday, and have declared them •void as between tbe parties. Hill v. Sherwood, 3 Wis. 343; Troewert v. Decker, 51 Wis. 46, 8 N. W. 26; Ainsworth v. Williams, 111 Wis. 17, 86 N. W. 551; Cranson v. Goss, 107 Mass. 439. Tbe question, then, arises, Were these notes made 'in violation of tbe law which prohibits tbe making of such contracts on Sunday? Tbis presents an inquiry as to tbe place of contract of these notes. It is tbe general rule at ■common law tbat personal contracts are to be deemed contracts of tbe state or country where they are actually made. A well-established exception occurs, however, when a contract declares specifically, or it appears by implication, that it is to be performed or paid in another state or country. Then its validity, nature, obligation, and effect is to be governed by the law of the place of payment or performance. The grounds of this exception are that the presumed intention of the parties is that it shall be deemed to be a contract of the place of payment or performance, unless such presumption is rebutted by the facts and circumstances surrounding the making and the performance or payment. Under such circumstances the fact that notes are made payable at the place of the domicile of the payee is held to bo very persuasive evidence of the intention of the parties that it was to be a contract of the place of payment. The intention thus expressed has been commonly held so conclusive in its effect that it must prevail unless it is made to appear that it would invalidate the contract, and that the parties 'intended to avoid such a result. Of the many authorities in support of these principles, the following may be cited: Bartlett v. Collins, 109 Wis. 417, 85 N. W. 703; Shores L. Co. v. Stitt, 102 Wis. 450, 78 N. W. 562; Hill v. Spear, 50 N. H. 253; Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 687; Dickinson v. Edwards, 77 N. Y. 573, 33 Am. Rep. 671; Story, Conflict of Laws, §§ 278a, 280; 1 Daniel, Neg. Inst. § 865';^ Wood’s Ryl.es, Bills & Notes, 570. This conclusion in no way militates against the decision of this court in Newman v. Kershaw, 10 Wis. 333. In that caso it was held that the place of payment as evidence of the intention of the parties that the law of'that place is to govern was overcome by the actual facts and circumstances of the case. An examination of the case will show a marked difference in the facts of the two cases. In the instant case we have an incidental meeting of the maker and payee of the notes in the city of New York, one of whom is domiciled in Massachusetts and the other in Wisconsin; the subject-matter of the contract out of which these notes arose being a sale and transfer of real estate situated in the state of Florida. No money was received or paid by either at the time the notes were executed. All further acts or dealings required by the contracts were to be performed in the state of Massachusetts. From these facts the conclusion must follow that the place of the contract is the state of Massachusetts, and its. laws govern. By the law of Massachusetts all executory contracts for the. payment of money, including bonds and promissory notes, made and delivered on Sunday, are void as between the parties. Supp. Pub. St. Mass. 1889-1895; Cranson v. Goss, 107 Mass. 439, and cases cited; Comm. v. De Voe, 159 Mass. 101, 34 N. E. 85. Defendant’s contention concerning the jurisdiction of the court under the legislation embodied in chs. 1 and 446, Laws of 1903, need not be considered for the reason that, if this legislation be invalid as claimed, the case must be held as pending in the superior court, and, on the other hand, if valid, the provisions of these acts cover this case, and the court properly proceeded to a final. determination of the cause. 'From the foregoing it follows that the judgment must be reversed, and the action be dismissed. No necessity, therefore, arises for considering any of the other questions argued on the appeal of either the plaintiffs or defendant.

By the Court. — Judgment of the superior court is reversed on defendant’s appeal, and the cause is remanded, with directions to enter judgment dismissing the complaint. Plaintiffs to take nothing on their appeal.

Plaintiffs moved for a rehearing.