48 Neb. 380 | Neb. | 1896
H. Olay Bascom sued James F. Zediker and others in equity in the district court of Lancaster county to recover
1. It is conceded by all parties that the note in suit is usurious under the laws of the state of Nebraska, and that if the contract between Zediker and Bascom was made in, and is to be governed by the laws of, the state of Nebraska, the decree of the district court must be affirmed. It is also conceded that if the contract between Zediker and Bascom was made in the state of New York and is to be governed by the laws of that state, the note in suit is void, and that the decree appealed from must be reversed.
2. On the trial Zediker testified that in the summer of 1888 he was a resident and citizen of the state of Nebraska, and that Bascom was a resident and citizen of the state of New York; that during this summer he was in Troy, New York, saw Mr. Bascom and entered into an ag'reement with him in and by which Bascom agreed to lend him $10,000, for which Zediker was to execute his promissory note drawing interest at the rate of ten per cent per annum, and to pay Bascom a bonus of $100 for making this loan. On the 11th day of August, 1888, Zediker being in Grand Island, Nebraska, wrote to Bas-
In Sheldon v. Haxtun, 91 N. Y., 124, Haxtun resided in the state of Illinois and Sheldon in the state of New York. Haxtun collected certain moneys in Illinois which belonged to Sheldon, and by an agreement between them, instead of remitting the money, he sent his own notes to Sheldon for the amount of money which he had collected belonging to him. These notes were dated at his place of residence in Illinois and drew ten per cent interest. This at the time was a lawful rate in the state of Illinois, but was unlawful in the state of New York. In an action upon these notes it was held that their validity was to be determined by the law of Illinois; that as they were valid there they were valid in New York. Andrews, O. J., said: “The transaction was in substance a loan by * * * a resident of New York, * * * to a resident of Illinois, in the latter state, of funds there
In Akers v. Demond, 103 Mass., 318, two bills of exchange were drawn in New York by one Reed upon Demond, a resident of Boston. The bills were payable in Boston and indorsed by a third party in New York and then transmitted by Reed to Boston, where they were accepted by Demond, who returned them to Reed in New York, where they were sold at a rate of interest usurious both in New York and in Massachusetts. In a suit on these bills of exchange Demond interposed the defense that they were made in and governed by the laws of the state of New York and were usurious and void. The court sustained this defense, saying: “The fact that the bills now in suit were accepted in Boston and were payable there does not exempt them from this
In Milliken v. Pratt, 125 Mass., 374, it was held: “A contract of guaranty signed in this commonwealth and sent by mail to another state, and assented to and acted on there, for the price of goods sold there, is made in the latter state.”
In McIntyre v. Parks, 3 Met. [Mass.], 207, it was held: “Where a proposal to purchase goods is made by letter sent to another state and is there assented to, the contract of sale is made in that state.”
In Gay v. Rainey, 89 Ill., 221, a note was executed by parties in Illinois and sent to the payee in Louisiana, where he indorsed the same and returned it by mail to the makers to be negotiated by them for their accommodation. The makers negotiated and delivered the note in Illinois. It was held that the contract of indorsement, though written in Louisiana, was made in Illinois and made at the time of the delivery of the note when negotiated by the makers. In this case it was further held that the place where a contract is made depends not upon the place where it is actually written, signed, or dated, but upon the place where it is delivered as consummating the bargain. To the same effect see Buchanan v. Drovers Nat. Bank of Chicago, 55 Fed. Rep., 223; Western Transportation & Coal Co. v. Kilderhouse, 87 N. Y., 430; Merchant v. Chapman, 4 Allen [Mass.], 362; Sands v. Smith, 1 Neb., 108; Hosford v. Nichols, 1 Paige Ch. [N. Y.], 220.
Applying these authorities to the facts of the case at bar, we reach the conclusion that the contract existing between Zediker and Bascom, out of which the suit in. controversy grew, was made in, and is to be governed by the laws of, the state of Nebraska, and not the state of New York. A contract is made when it is finished, com
Affirmed.