83 Mo. App. 385 | Mo. Ct. App. | 1900
Suit on the following promissory note: “$500. Logansport, Ind., March 3, 1896.
“Six months after date, for value received, we promise to pay to W. ~W. Sharpe or order at the First National Bank, of Logansport, Indiana, the sum of five hundred dollars, with interest at the rate of eight per cent per annum from date until paid, and attorneys’ fees, without any relief, whatever, from valuation or appraisement laws. The makers and indorsers jointly and severally waive presentment for payment, protest, and notice of protest, and nonpayment of this note.
“(Signed) Sophia °E. Sharpe.”
The answer admitted that defendant signed the note, but denied its assignment to plaintiff for value by W. W. Sharpe, the payee, before maturity, and alleged the following special defenses:
“Defendant further answering says that at the time of' the execution and delivery of said instrument of writing to. W. W. Sharpe, she was a married woman, and her coverture*389 has continued ever since, and that under the laws of the state of Indiana she had no power to make a personal obligation, and that she has no separate property and that by reason of these facts said instrument of writing was void and of no effect and still remains so:
“Defendant further answering says that W. W. Sharpe the payee in said instrument of writing is her son. That the said instrument of writing is accommodation paper. That there was no consideration for the same, value or otherwise, and that she signed said instrument for the purpose of enabling her son to borrow money at a bank in Logansport, Indiana, thereon, but that the said instrument of writing was diverted from its original purpose of which this plaintiff well knew and that this defendant is not liable on said note to this plaintiff because of a total lack of valuable consideration.
“Defendant further says that plaintiff knew of the infirmities of said instrument of writing at the time they acquired possession of same and knew that there was no consideration for said instrument of writing and knew that the same was not supported by any valuable consideration, and defendant asserts that she is not liable either to this plaintiff or to the said ~W. W. Sharpe for the payment of any part of said instrument of writing.”
The issues were submitted to the court sitting as a jury, who after hearing the evidence, found the issues and rendered' judgment for the defendant. Plaintiff appealed.
The evidence is that the defendant is a married woman residing with her husband in Pike county, Missouri; that her son ~W. ~W. Sharpe, when the note was signed, resided at Logansport in the state of Indiana; that he was a member of the firm of Tucker & Sharpe Company, doing a tailoring business in Logansport; that the firm was indebted to plaintiff for goods for which it was unable to pay, and that it wanted more goods from plaintiff; that plaintiff declined to ship the
The evidence is that the common law of coverture is in force in Indiana. If the note is an Indiana contract, then it is void for want of legal capacity in Mrs. Sharpe to bind herself personally, by signing her name to the note. Under the laws of Missouri defendant had legal capacity to make the note. The learned circuit judge decided that the note was an Indiana contract. How the law of Indiana, as to the legality of the note can be applied, it is difficult to see, in view of the fact that the note was made in Missouri, and the suit to enforce its collection was brought here.. “A contract is made when both parties agree to it. If the offer is made by letter, then it is made where the party receiving the proposition puts into the mail his answer accepting it, or does any equivalent act,” says Prof. Parsons (2 Parsons on Contracts, p. 582);
The case of Insurance Company v. Simons, 52 Mo. App. 357, relied on by respondent has no application to the facts in this case. In the Simons case the court found as a fact that the note, though signed in Missouri, was delivered in the state of Kansas, it was not therefore executed in Missouri, but in Kansas, and was a Kansas contract. The Simons case is in harmony with the great weight of authority and with the cases cited, supra. But it is contended that the evidence proves .that the parties intended to make the note an Indiana contract. C What they intended, as to an innocent assignee of the note, S can only be ascertained from the terms of the note and tire (^circumstances attending its execution. These show no- more than, that the note was to be paid at a bank in Logansport, Indiana. The law presumes that when Mrs. Sharpe signed the note for the accommodation of her son, that she did so in good faith, intending to be bound by it. Wharton on Evidence [2 Ed.], sec. 1250; 2 Parsons on Contracts, 583. Under this presumption the general principles of the law of place as applied to contracts, concerning personal property, will be construed to sustain the validity of contracts. Wharton on Conflict of Laws, sec. 429; Hunt v. Jones, 12 R. I. 265; Casey v. Mackey, 82 Maine 516. Courts will always validate contracts where it is possible to do so without doing violence to> the terms of the contract, or some well-settled principle of law. The respondent signed her name to the note in Missouri, delivered if in Missouri, by mailing it to her son; she made him the payee, with legal authority written in the body of the note, without restrictions or qualifications to sell it where and to whom he would; he exercised this delegated power, this agency, by indorsing and delivering the note to appellant for value; they took it in good faith, gave value for it without
SEPARATE OPINION BY
It is evident that the circuit court found as a matter of law, that the note was an Indiana contract, and that under the law of that state the defendant could not be held thereunder. The only question is whether the conclusion .of the court is authorized by the law and the testimony. The evidence tended to prove these facts: The note was written in Logansport, Indiana; it was sent by the payee through the mails to the defendant, who lived in Missouri; the latter signed the note in Missouri, and returned it by mail to the payee at Logansport; the defendant understood that the note was to be negotiated at the bank in Logansport in order to relieve the payee from temporary financial embarrassment; that the payee was unable to discount the note in Logansport, and that he subsequently transferred it to plaintiff, a Missouri -corporation, as security or in part payment of a pre-existing debt, and for the further consideration of the sale of certain .goods. The defendant read in evidence the statutes of Indiana,
The validity or invalidity of a contract must be determined by the law of the state where it is made. Generally the place of contract is where the contract is executed and delivered. If it is actually signed in one state and delivered in another, in legal contemplation it is executed at the place of delivery. Phoenix Ins. Co. v. Simons, 52 Mo. App. 357; Stix v. Matthews, 63 Mo. 373; Millikin v. Pratt, 125 Mass. 374; Hill v. Chase, 143 Mass. 129; Gay v. Rainey, 89 Ill. 221; Butler v. Meyer, 17 Ind. 77; Bell v. Packard, 69 Me. 105; Lawrence v. Bassett, 5 Allen (Mass.) 140; Baum v. Birchall, 24 Atl. Rept. (Pa.) 620.
The note in suit was delivered to Sharpe, the payee, in the state of Indiana (Insurance Company v. Simons, supra), and had it been executed by defendant for value, or had Sharpe negotiated it in the state of Indiana, it would unquestionably have been an Indiana contract. But the plaintiff’s evidence takes the case out of the operation of this general rule. The defendant was an accommodation maker of the note, and by delivering it to the payee she constituted him her agent to negotiate it, and until transferred or put in circulation by the payee, it has no validity against the defendant. Therefore the negotiation of the note, and not its execution and delivery, gave it life. If, therefore, the transfer by the payee to plaintiff was made in Missouri, the note became a Missouri contract. Thus in Tilden v. Blair, 21 Wall. 241; Stubbs v. Colt, 30 Fed. Rep. 417; Cook v. Litchfield, 5 Sanford, 330; Stanford v. Pruett, 27 Ga. 243, it is held substantially, that “accommodation paper only becomes a valid promise to pay money, and binding upon the indorsee, when it is delivered to the person who gives a valuable consideration
I therefore concur in reversing judgment and remanding the cause.
