Brown, Bros. v. Freeland

| Miss. | Oct 15, 1857

Fishes, J.,

delivered the opinion of the court.

This is an appeal from a decree of the Vice-Chancery Court, at Natchez, sustaining a demurrer to the complainants’ amended bill. The facts which relate to the principal ground of demurrer, are as follows. The Commercial Bank of Rodney was, on the 30th of June, 1840, indebted to the complainants in a certain sum? of money, payable in London; and, failing to make payment at the place appointed, payment was demanded of the bank at her place of business in this State. Not being able to comply with this demand, the bank proposed to make the debt payable in New York; and, in consideration of this change in the place of payment, and of forbearance by the complainants,.it is alleged that she promised to pay interest on the debt at the rate of eight per cent, per annum, until it should be finally paid.

This proposition, ripening into a contract between the Commercial Bank of Rodney and the complainants, the question is, can the contract be enforced ?

It is said, inasmuch as the money is, by the terms of the contract, payable in New York, it must be presumed that the parties contracted with reference to the laws of that State, — which declare all contracts reserving a higher rate of interest than seven per cent, void. The proposition made by the bank, being dated at her place of business in this State, the contract, for the purpose of considering the question argued by counsel, will be treated as one made in this State, to be performed in New York.

It will readily be perceived from the brief statement which has been made of the facts, that the main point to be settled is, whether the parties had in view the laws of Mississippi or of New York, in consummating the contract. In considering this somewhat vexed question, we will not undertake to reconcile the various decisions made on the subject, and which, it may be admitted, cannot be easily made to harmonize. The difference in the decisions but accords with the views which different courts have entertained, as ■to the principle upon which they have based their opinions. One set of decisions is based upon an admitted doctrine, that the lex loci contractus controls the nature, construction, and validity of the contract, and that if it is valid by that law, it is equally so everywhere. 2 Kent. Com. 454. The other set of decisions rests upon another doctrine, which, Avith certain qualifications, inay also be admitted, — that when a contract is made in one country, but to be performed in another, it must be presumed that the parties contracted with reference to the laws of the latter country. This, however, being but a presumption, must be controlled by the actual truth of the case, when ascertained; or, in other words, by.the intention of the parties, to be collected from the contract itself, and all the surrounding circumstances. Let us inquire then, first, as to the intention of the parties. The debt was originally payable, not in New York, but in England; and up to the time of making the proposition, the bank had neither received any benefit, or been subjected to the performance of any duty under the laws of New York. The advantage sought by the proposed modification in the contract as to the time of payment was to accrue to her in this State, because, being the creature of our laws and located here, it was here that she would have been visited with the consequences of her default in failing to pay the debt according to contract in England. The laws of New York were as inoperative, and as ineffectual to afford the complainants an adequate remedy for the collection of their debt, as the laws of China would have been, if appealed to under the circumstances. The very object, therefore, sought by the forbearance, was to relieve the bank from the consequences which the laws of this State attached to her failure to perform her contract. It was here, that the complainants could, and doubtless would have pursued their remedy; and to avoid the consequences of such a proceeding, was the advantage which the bank expected to realize. The advantage then accruing here, it is but fair to presume that she was .willing, and intended to pay for such advantage what the laws of the State permitted the complainants to exact. Besides, the proposition, coming, as it did, from the bank, it may be presumed that her officers intended to contract with reference to those laws with which they were most familiar; and the proposition conforming to the laws of this State, we are bound to presume that jt was so intended; and, in the absence of any averment to the contrary, we must presume that the proposition was accepted with the same intention with which it was moulded.

It is, therefore, our opinion that the parties intended the contract, so far as its nature, construction, and validity are concerned, to be governed by our laws and not by the laws of New York; and this narrows the controversy down to the single point, — whether the parties could so contract, We have seen that the advantages, expected to accrue to the bank, under the contract, were realized here, and, as the equivalent for such advantages, she undertook to pay no more than the law of the'State permitted the complainants to exact.

The place of payment can and ought, upon principle, to make no difference, as the sole question oh this part of the contract was, whether the creditors should seek payment from the debtor at her place of business in this State, or whether the debtor should go beyond the State and make payment to the creditors at a place designated, but different from that specified in the contract, which was to be modified. The law sanctions that which it does not prohibit ; and certainly parties, for advantages or exemptions to be enjoyed here, may contract to pay therefor, to the extent that our law is not infringed in so doing; and the contract being valid here, why is it not equally so in New York ? What law of that State dictated a rule of action to the parties in consummating their contract ? None; for the reason that it was confined in its operation to transactions'in the State, or to advantages to be there enjoyed. But the authorities settle this point. Chancellor Kent declares the general doctrine to be, that the law of the place where the contract is made is to determine the rate of interest, when the contract specifically gives interest. 2 Kent, 460. The interest being part of the substance of the contract, the only inquiry is, whether it is such a stipulation as could be inserted therein without a violation of law; and the case of Depau v. Humphreys, 8 Martin R. 1, is full on this point. Whatever the rule at one time may have been, it is now settled, by the modern decisions, that when a contract is made in one country, stipulating for a rate of interest sanctioned by the laws of that country, it is valid, regardless of the laws of the country where it is payable, unless it shall appear that it w7as made with reference to the laws of the latter country. The presumption is never to be indulged that parties intended, in making their contract, to violate the law; an(l if there be two laws, with reference to either of which they may contract, and the contract accords with one of the laws, it must be presumed that the parties so intended, because they had their election to mould the contract according to either law; and, as the law presumes in favor of a contract, and not against it, the presumption must be that the parties had in view the law which will give full effect to their contract.

We are, therefore, of opinion that the contract, in this instance, being valid under the laws of this State, the court below erred in sustaining the demurrer and dismissing the bill.

It is again said that, as the debt was payable in England, the laws of that country must govern as to the rate of interest. We deem it only necessary to repeat what has been said, that the parties could, by a contract made in this State, modify the old contract, to the extent that they were not prohibited by our law from so doing. The bank desired to enlarge the time of payment, and our law permitted the complainants, without regard to the previous contract, to stipulate for interest at the rate of eight per cent, per annum, as the consideration or inducement of this new feature of the contract. The bank had her option either to perform the contract in England, or to make in substance a new contract here, to pay any rate of interest for the forbearance, which the law sanctioned.

It is also said that the bill should have made the other creditors of the bank parties to the bill. There is no allegation that there are any other creditors; and hence this question cannot arise on demurrer.

Decree reversed, demurrer overruled, and cause remanded for answer to amended bill in sixty days.