By the Court.
Lumpkin, J.,
delivering the opinion.
Dr. H. Lopez, having occasion to raise money in the City of Charleston, South Carolina, offered for discount at the Charleston Insurance and Trust Company, his note, indorsed by the defendant for $300, dated at Charleston and payable at a Bank in that City. It was to be discounted for the accommodation of the maker. The Trust Company refused to discount it, without a City endorser; whereupon the plaintiff indorsed it. It was then discounted. Before its maturity, application was made by Dr. Lopez, for its renewal. This fact was communicated to Cohen, by the Company, through its Secretary. They further informed him, that the time of payment would be extended, provided he would continue his indorsement, either by renewing the old note, or mailing and establishing a new one in its stead. The letter also mentioned, that Dr. Lopez would correspond with him on the subject. Cohen immediately answered, that he was willing to do either. A short time thereafter, Dr. Lopez forwarded, by letter, to Cohen at Savannah, where he resided, a new note for the amount of the old, including interest, viz: $321 17 cts,, payable and negotiable at the Bank of Charleston, who indorsed and mailed it from Savannah to the Company.
[10]*10David C. Levy subsequently paid the note, and brought suit upon it against Cohen. It seems, that Cohen notified the holders to proceed to collect the note out of the maker before its payment by Levy; and this not having been done, the defendant contended that his contract of indorsement — having been executed in Georgia — was to be regulated and controlled by the laws of this State; and that by the act of 1831, passed for the benefit and protection of securities and indorsers, he was discharged from his liability on the note. The statute provides — “ that any security or indorser may, whenever he thinks proper, after the note or instrument becomes due, require the holder to proceed to collect the same, and if he should not do so within three months, the indorser or security shall be no longer liable.” Prince, 471.
Judge Fleming, before whom the cause was tried, in Chatham county, was asked to charge the jury :
1st. That although the name of the defendant may have been written in Georgia upon the note, yet the contract of indorsement was not completed until the note was passed away and putin circulation, which was not done in this State, but in Carolina.
2d. That there was no completion of the contract of indorsement until there was a delivery of the note to, and receipt and acceptance of it by, the said Company in Charleston, it having been made to discount by said Company, to renew a note already discounted there for the accommodation of the maker.
3d. That being an accommodation paper, payable and negotiable on its face in Charleston, and intended to be discounted for the maker at a Bank in Charleston, the note was never uttered or put in circulation as a note, until it was offered for discount, the purpose for which it was made.
4th. That there was no contracting party or indorsee in Georgia, with whom the contract of indorsement could be, or was made, and consummated, and that the indorser could not have passed it away to an indorsee in Georgia, without a fraud or violation of the purpose for which the note was made.
5th. That the place where the contract is finally completed and assented to, is the place of the contract; eo loco, quo ultimus in contraliendo asseniilur is the rule, and that place is Charleston in the present case.
But the Circuit Court refused so to instruct the jury; and on the contrary did charge the jury that the contract of indorsement [11]*11in this case was a Georgia contract, because, although it be true that the contract of indorsement was not completed until the note was passed away, and put in circulation by delivery to the Company in Charleston; and although it be true that there was no contracting party or indorsee in Georgia, and that the indorser would have been guilty of a fraud had he passed away the note to an indorsee in Georgia, yet that under the peculiar facts and circumstances of this case, the indorsement of the defendant must he considered to have been made in Georgia: and that if the jury should find from the evidence, that the defendant gave the notice authorized by the statute of 1831, and that the Company did not proceed within three months thereafter to collect it, their verdict should be for the defendant — and the jury found accordingly. .
To the refusal of Judge Fleming to charge as requested, and to the charge as given, the Counsel of the Plaintiff excepted, and upon which error is assigned.
[1.] The general rule that the law of the place where the contract is made is to govern as to its nature, validity, obligation, and construction, is conceded by the learned Counsel for the Plaintiff in error. To this, he contends, and we think very properly, that there are several exceptions; and that among the rest, this is one, viz: that where the contract is entered into with an understanding that it is to he executed in a place different from the one where it is made, as in the case of Robinson vs. Bland, 2 of Burrow, 1077, where a bill was drawn at Paris, payable in England, Lord Mansfield held that it was an English and not a French contract.
It is admitted that the manual indorsement of this note was in Georgia. It is urged, however, that being given for a specific purpose, i. e. to renew a paper due at Charleston, and negotiable and payable there, that the contract of indorsement was not completed until the note was accepted and discounted at that place: that delivery is necessary to the consummation of this contract, and that no delivery was or could have been made in Georgia, for the reason that there was no one here to receive the note.
Is this position tenable ? Is every note drawn in this State, and transmitted out of it, to Charleston, New York or elsewhere, to he subjected to the foreign jurisdiction for its interpretation?— [12]*12We apprehend not. A note might be made and payable at Savannah, and sent to Charleston to be negotiated at one of the Banks there, upon a city indorsement, and yet when done, the fact that the note was discounted in the latter place, would not, as to the maker, convert it into a Carolina contract. Wherein does this case differ from the one under review, except as to the mode of proof? In the one, the place of payment is fixed upon the face of the paper. In the other, the place of execution being ascertained by aliunde testimony, the law of that case becomes equally the rule of the contract, no matter where the note may be subsequently negotiated.
Is there any evidence to show that Cohen, at the time he indorsed this note at Savannah, his notorious place of abode, had an express view to the law of South Carolina as to its execution? It is insisted that such is necessarily the inference, in as much as the note is negotiable and payable at Charleston. No doubt this is true as to the maker,'hut not as to Cohen. Plis agreement was not that he would pay the note at Charleston, at the time specified, but that if Dr. Lopez failed to do so, he, the indorser, would thereafter pay it on request.
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By the Court.
Lumpkin, J.,
delivering the opinion.
Dr. H. Lopez, having occasion to raise money in the City of Charleston, South Carolina, offered for discount at the Charleston Insurance and Trust Company, his note, indorsed by the defendant for $300, dated at Charleston and payable at a Bank in that City. It was to be discounted for the accommodation of the maker. The Trust Company refused to discount it, without a City endorser; whereupon the plaintiff indorsed it. It was then discounted. Before its maturity, application was made by Dr. Lopez, for its renewal. This fact was communicated to Cohen, by the Company, through its Secretary. They further informed him, that the time of payment would be extended, provided he would continue his indorsement, either by renewing the old note, or mailing and establishing a new one in its stead. The letter also mentioned, that Dr. Lopez would correspond with him on the subject. Cohen immediately answered, that he was willing to do either. A short time thereafter, Dr. Lopez forwarded, by letter, to Cohen at Savannah, where he resided, a new note for the amount of the old, including interest, viz: $321 17 cts,, payable and negotiable at the Bank of Charleston, who indorsed and mailed it from Savannah to the Company.
[10]*10David C. Levy subsequently paid the note, and brought suit upon it against Cohen. It seems, that Cohen notified the holders to proceed to collect the note out of the maker before its payment by Levy; and this not having been done, the defendant contended that his contract of indorsement — having been executed in Georgia — was to be regulated and controlled by the laws of this State; and that by the act of 1831, passed for the benefit and protection of securities and indorsers, he was discharged from his liability on the note. The statute provides — “ that any security or indorser may, whenever he thinks proper, after the note or instrument becomes due, require the holder to proceed to collect the same, and if he should not do so within three months, the indorser or security shall be no longer liable.” Prince, 471.
Judge Fleming, before whom the cause was tried, in Chatham county, was asked to charge the jury :
1st. That although the name of the defendant may have been written in Georgia upon the note, yet the contract of indorsement was not completed until the note was passed away and putin circulation, which was not done in this State, but in Carolina.
2d. That there was no completion of the contract of indorsement until there was a delivery of the note to, and receipt and acceptance of it by, the said Company in Charleston, it having been made to discount by said Company, to renew a note already discounted there for the accommodation of the maker.
3d. That being an accommodation paper, payable and negotiable on its face in Charleston, and intended to be discounted for the maker at a Bank in Charleston, the note was never uttered or put in circulation as a note, until it was offered for discount, the purpose for which it was made.
4th. That there was no contracting party or indorsee in Georgia, with whom the contract of indorsement could be, or was made, and consummated, and that the indorser could not have passed it away to an indorsee in Georgia, without a fraud or violation of the purpose for which the note was made.
5th. That the place where the contract is finally completed and assented to, is the place of the contract; eo loco, quo ultimus in contraliendo asseniilur is the rule, and that place is Charleston in the present case.
But the Circuit Court refused so to instruct the jury; and on the contrary did charge the jury that the contract of indorsement [11]*11in this case was a Georgia contract, because, although it be true that the contract of indorsement was not completed until the note was passed away, and put in circulation by delivery to the Company in Charleston; and although it be true that there was no contracting party or indorsee in Georgia, and that the indorser would have been guilty of a fraud had he passed away the note to an indorsee in Georgia, yet that under the peculiar facts and circumstances of this case, the indorsement of the defendant must he considered to have been made in Georgia: and that if the jury should find from the evidence, that the defendant gave the notice authorized by the statute of 1831, and that the Company did not proceed within three months thereafter to collect it, their verdict should be for the defendant — and the jury found accordingly. .
To the refusal of Judge Fleming to charge as requested, and to the charge as given, the Counsel of the Plaintiff excepted, and upon which error is assigned.
[1.] The general rule that the law of the place where the contract is made is to govern as to its nature, validity, obligation, and construction, is conceded by the learned Counsel for the Plaintiff in error. To this, he contends, and we think very properly, that there are several exceptions; and that among the rest, this is one, viz: that where the contract is entered into with an understanding that it is to he executed in a place different from the one where it is made, as in the case of Robinson vs. Bland, 2 of Burrow, 1077, where a bill was drawn at Paris, payable in England, Lord Mansfield held that it was an English and not a French contract.
It is admitted that the manual indorsement of this note was in Georgia. It is urged, however, that being given for a specific purpose, i. e. to renew a paper due at Charleston, and negotiable and payable there, that the contract of indorsement was not completed until the note was accepted and discounted at that place: that delivery is necessary to the consummation of this contract, and that no delivery was or could have been made in Georgia, for the reason that there was no one here to receive the note.
Is this position tenable ? Is every note drawn in this State, and transmitted out of it, to Charleston, New York or elsewhere, to he subjected to the foreign jurisdiction for its interpretation?— [12]*12We apprehend not. A note might be made and payable at Savannah, and sent to Charleston to be negotiated at one of the Banks there, upon a city indorsement, and yet when done, the fact that the note was discounted in the latter place, would not, as to the maker, convert it into a Carolina contract. Wherein does this case differ from the one under review, except as to the mode of proof? In the one, the place of payment is fixed upon the face of the paper. In the other, the place of execution being ascertained by aliunde testimony, the law of that case becomes equally the rule of the contract, no matter where the note may be subsequently negotiated.
Is there any evidence to show that Cohen, at the time he indorsed this note at Savannah, his notorious place of abode, had an express view to the law of South Carolina as to its execution? It is insisted that such is necessarily the inference, in as much as the note is negotiable and payable at Charleston. No doubt this is true as to the maker,'hut not as to Cohen. Plis agreement was not that he would pay the note at Charleston, at the time specified, but that if Dr. Lopez failed to do so, he, the indorser, would thereafter pay it on request.
The indorsement of a note in contemplation of law, amounts to a contract on the part of the indorser, and in favor of the in-dorsee, and every subsequent holder, to whom the note is transferred : (1.) That the instrument and the antecedent signatures are genuine; (2.) That he, the indorser, has a good title to the instrument; (3.) That he is competent to bind himself by the indorsement as indorser; (4.) That the maker is competent to bind himself to the payment, and will upon due presentment of the note pay it at maturity or when it is due; (5.) That if when duly presented it is not paid by the maker, he, the indorser, will, upon reasonable notice given him of the dishonor, pay the same to the indorsee or other holder. Story on 'Prom, notes, 135.
Where, in the case at bar, is this notice of dishonor to be given to, and payment to be made by Cohen? Of course in Georgia, where he lived, and where his contract of indorsement was entered into.
[2.] But is it true that this note was not and could not have been delivered in Georgia, in as much as the payees resided in Charleston ? Before the original note became due, the Charleston Insurance and Trust Company wrote to defendant, commu-[13]*13ideating to him the application of Dr. Lopez to procure an extension of the time of payment, and proposing to him, should he acquiesce in the arrangement, either to waive protest of the old note, or indorse the new note, which would be sent to him by his principal. And the defendant at Savannah acceded to the offer by indorsing the new note and inclosing it by mail to the proper officer of the Company. When and where was the note delivered in legal contemplation? To consummate a contract there must be mutuality of assent to a certain and definite proposition. But this may be done, not only personally, where the parties are present, but by means of agents or letters, where they are at a distance from each other. And in such cases the rule is, that if the proposition be made in writing, and sent by the Post, the party making the offer can retract by a subsequent letter, reaching the other party at any time before an answer of acceptance is written and put in the mail. But as soon as such answer is placed in the mail, the contract is completely closed as to hath parties. An acceptance by written communication, takes effect from the time when the letter containing the acceptance is sent, and not from the time when it is received by the other party.— Story on contracts, (2d ed.J 384.
I am aware that the Supreme Court of Massachusetts, in Mc-Culloch vs. the Eagle Insurance Company, 1 Pick. Rep. 278, maintained the doctrine that no acceptance is binding until knowledge of it has reached the other party. The court of King’s Bench, however, in Adams vs. Lindsell, 1 Barn, and Ald. 681, established conclusively die other as the English rule, and the doctrine of the common law. See also 6 Wend. Rep. 103. 12 Con. Rep. 436. 1 Story’s Eq. 237, note and cases there cited.
The contract of indorsement then was completed, or the “ union of minds” between Cohen and the Charleston Company ascertained and manifested, so soon as the note was mailed at Savannah, upon the maxim — scrihere est agere — in other words it was consummated in this State. The proposal must always precede the acceptance. The medium of communication among men, does not allow of their being strictly simultaneous. In the case under discussion, the offer of the C ompany is to be regarded in law as having been made at the last moment of time preceding the acceptance; and hence the acceptance above signified and offer are in legal contemplation “ at one instant.”
[14]*14Even adopting the Massachusetts rule, still when Cohen’s letter, inclosing the note, was received at Charleston, and the note substituted for the old, it referred or related back to Georgia, where the indorsement was made, and the defendant resided, and must still be taken and considered as a Georgia contract. And this princi-pio is forcibly illustrated in Snaith vs. Mingay, 1 Maule Selwyn, 87, where bills drawn in Ireland and forwarded to London, to be there used, the dates, sums and drawees being left blank, wore, when filled up and put in circulation, decided to be Irish contracts.
In every aspect then, in which we have been able to examine this question, our conclusion is, that the application for a reversal of the judgment below must be refused.
And this being our determination, it is unnecessary to advert to the other point, made by the counsel for the defendant in error; and that is, that were this indorsement a South Carolina contract, still the act of 1831 affects the remedy only, and not the obligation of the contract, and was therefore to be regarded as the law of the forum, where suit was brought. Upon that point we forbear to express any opinion.
Judgment affirmed.