McClees v. Burt

46 Mass. 198

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1842
• Status: Published

Opinion

Wilpe, J.

At the trial of this case in the court of common pleas, several exceptions were taken by the defendant’s counsel to the rulings and decisions of the presiding judge, none of which, in our opinion, can be sustained. The first exception is, that the writing on which the action is founded appears to be a sealed instrument, and consequently that the action should have been an action of debt or covenant. But this does not appear by the writing produced in evidence. According to the common law, and the law of this Commonwealth, this is not a writing under seal, nor is it placed on the same footing with specialties or contracts under seal. If the law of North Carolina, where the contract was made, be otherwise, it should have been proved. Such proof, however, would not avail the defendant, it being a well settled rule of law, that in deciding a question as to the form of action for the breach of a contract made in a foreign state or nation, the lex fori and not the lex loci contractus must govern. Warren v. Lynch, 5 Johns. 239. Pearsall v. Dwight, 2 Mass. 90. Bank of United States v. Donnally, 8 Pet. 361. Andrews v. Herriot, 4 Cow. 508. Don v. Lippmann, 5 Clark & Fin. 1. Trasher v. Everhart, 3 Gill & Johns. 234.

/ Another exception is, that the evidence offered by the defendant to prove the invalidity of the judgment, for the discharge of which in part the contract in question was made, was illegally excluded. As the defendant was a party to that judgment, it is very clear, we think, that he cannot collaterally impeach it in this action. The case of Homer v. Fish, 1 Pick. 435, and the cases there cited, are. decisive on this point. If that judgment was fraudulently obtained, the defendant’s remedy is by application to the court, that rendered it, to vacate it. And if by the laws of North Carolina it may be vacated by a writ of review or otherwise, the defendant will not be deprived of his remedy, by the plaintiff’s recovery against him in the present action. Considering that judgment as valid, it cannot be doubted that the discharge of it in part was a good consideration for the contract in suit. Exceptions overruled.