Hotel Woodward Co. v. Ford Motor Co.

258 F. 322 | 2d Cir. | 1919

HOUGH, Gircuit Judge

(after stating the facts as above). [1, 2] One matter of procedure justifies preliminary attention. The trial judge dismissed the complaint after having heard all the evidence adduced by both parties. It is clear from the record that the court ordered a dismissal instead of directing a verdict for the defendant because plaintiff’s trial counsel insisted that nothing more than a dismissal was proper under the New York Code of Civil Procedure.

This was a mistake in form; a dismissal (not upon the merits) is a nonsuit, but where, after hearing all the evidence, the trial judge reaches a correct conclusion in favor of the defendant, the jury should be directed to enter a verdict in that defendant’s favor. Stumpf v. Hallahan, 101 App. Div. 383, 91 N. Y. Supp. 1062; affirmed 185 N. Y. 550, 77 N. E. 1196. The rule in the federal courts we stated in Re Iron Clad Manufacturing Co., 197 Fed. 281, 116 C. C. A. 642.

[3] The case being before us, however, on a nonsuit, we “must assume * * * that plaintiff’s testimony is true, and that they are thus entitled to the benefit of every fair inference therefrom.” Davis v. Carnegie Steel Co., 244 Fed. at page 933, 157 C. C. A. at page 283.

[4] Another trial matter must be noted: The amendment pleading the Michigan statute of frauds should have been denied. It has been often held that the statute may be availed of under a general denial (e. g. Third National Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119); but this defendant had specifically pleaded the New York statute, as required by Crane v. Powell, 139 N. Y. 379, 34 N. E. 911, and Matthews v. Matthews, 154 N. Y. 288, 48 N. E. 531. Doubt-, less it is “common form” to object to amendments as surprising; but, when the distinction between these two statutes, and the course of this trial is considered, the truth of this plea of surprise is manifest, and its result is to produce a legal question that might have been wholly avoided.

One effect of the amendment made after plaintiff rested was to raise the question whether Robertson’s authority (if he had any) was oral or written, if the Michigan statute applied. We search the record in vain for any evidence that testimony on this point had been sought for; certainly none is presented to us, and it was going too far to insert this issue in a case actually on trial in New York, when such written authority as might exist certainly sprang into existence and remained of record in Michigan.

As, however, defendant (so far as we can see) was entitled to amend after motion on due notice, and the question intended to be raised is of importance upon any future trial herein, we shall consider it now.

[5-7] It is not doubted that we must look only to the law of the state in which land is situated for the rules governing its alienation and transfer and for the effect and construction of conveyances of all kinds. Olmsted v. Olmsted, 216 U. S., at page 393, 30 Sup. Ct. 292, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292, and cases cited. If, therefore, this action related to land title, there would be no doubt that the contract transferring the same would be governed and intefpreted by the law of New York alone; for the proposed 21-year lease is an estate in lands,/and real property under the law of this state. But the plaintiff herein is not suing to establish a title, nor is it seeking to procure one by way of specific perfoi'mance or otherwise. The action is personal and transitory and asserts liability in the defendant for breach of a personal obligation only; there is no effort to obtain an interest in the res; indeed, inability to obtain such interest is presupposed, and relief in personam only is demanded.

Reduced to its simplest legal form, the question here is whether the lex loci contractus (or, more accurately, the lex loci conditionis), or the lex rei sitae applies when a statute of frauds is invoked as a defense. The diversity of judicial opinion revealed by endeavors to discover what law governs the validity of a contract is a most extensive suN jéct, and the results of exhaustive research were stated by Prof. J. H. Beale in 1909.¹ The manifest inclination of the courts has usually been toward treating statutes of frauds like other statutes regulating or limiting the right of contract and to find “the law of the contract” (as it is called, in St. Louis R. R. v. Terre Haute R. R., 145 U. S. at page 405, 12 Sup. Ct. 953, 36 L. Ed. 748) in the law of the place where the contract was made. But mingled with this current of decision (turbid as it is) is plainly discernible the conflicting inclination to identi-iy all contracts relating to land and all actions for breach of such contracts with conveyances of title to interests in land, to which, as above stated, the lex rei sitae always applies.

Thus the inquiry at bar is narrowed to the following question: What is the law of a contract made in Michigan for the conveyance of an interest in New York realty when the action is to recover money damages only in a personal and transitory suit for the breach of such contract, and action is brought in a court of the United States sitting in New York?

This comparatively small fraction of the larger subject may be, and has been, treated in several different ways.

One view has been compendiously and authoritatively stated by Mr. Dicey substantially as follows: All rights over or in relation to an immovable are governed by the law of the country where the immovable is situate: the effect of a contract with regard to an immovable is governed by the proper law of the contract- — and “proper law of the contract” means the law by which the parties may be fairly presumed to have intended the contract to be governed. Dicey’s Conflict of Laws (Ed. 1908) pp. 500, 510, and 529. This may be regarded as the prevailing, or at least most often stated, English view, and of it Prof. Beale notes that it almost invariably results in finding that the law of the contract is the law of England. This method of statement has often been chosen by our federal courts (Pinney v. Nelson, 183 U. S. at page 148, 22 Sup. Ct. 52, 46 L. Ed. 125, citing Wayman v. Southard, 10 Wheat. 48, 6 L. Ed. 253); and it has likewise at times obtained favor in the courts of New York (Stumpf v. Hallahan, supra). Whether this view is wholly consistent with Bank of Africa v. Cohen (1909) 2 Ch. 129, may be doubted, for it was there held that a married woman’s capacity to contract concerning her own land in the Transvaal was governed solely by the law of the Transvaal, although she had assumed to contract in England, and an action to compel specific performance was promoted in Great Britain.

Another and often prevailing view is that a statute of frauds is a law concerning evidence, not affecting the inherent validity of contracts nor the capacity of the contractors to enter into obligation, but merely prescribing stringent rules by which alone the intent and purpose of the parties shall be made manifest; wherefore the lex fori applies. This doctrine, commonly thought to rest on Leroux v. Brown, 12 C. B. 801, has been apparently approved in Pritchard v. Norton, 106 U. S. 134, 1 Sup. Ct. 102, 27 L. Ed. 104.

But the distinction lias been drawn in respect of. the differing language of the statutes of different sovereignties. Many acts, like the original of 29 Car. II, c. 3, declare in substance that no action shall be brought except it be supported by a written contract or a note or memorandum thereof. Others (like the present statutes of New York and Michigan) declare that contracts not so supported shall be void. Statutes in the earlier form have been regarded as rules of evidence in Heaton v. Eldridge, 56 Ohio St. 87, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737; Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29; and Third National Bank v. Steel, supra. The matter is well discussed in Obear v. First National Bank, 97 Ga. 587, 25 S. E. 335, 33 L. R. A. 384, and it is pointed out that where the statute merely forbids suit it is matter of evidence or remedy, and the lex fori applies. But Wolf v. Burke, 18 Colo. 264, 32 Pac. 427, 19 L. R. A. 792, rests upon the proposition that the statute of that state, like that of New York, renders the oral contract void, wherefore the doctrine of the Reroux Case is inapplicable; and this view of the New York statute has received the approbation of the late Prof. Dwight, sitting as referee in Marie v. Garrison, 13 Abb. N. C. (N. Y.) 258. The whole doctrine of Reroux v. Brown is disapproved in Wharton’s Conflict of Raws (3d Ed.) § 689, et seq. Nevertheless support can be found for the view that even the New York statute is a rulé of evidence. Crane v. Powell, supra; Matthews v. Matthews, supra.

When the inquiry is narrowed to discovering judicial pronouncements in respect of personal actions brought for breach of contract regarding land, made in a state other than that of the land itself, the results are equally varied. The view that in such an action the lex rei site has no application is thought to have obtained vogue largely (though not wholly) from the decision of Holmes, J., in Polson v. Stewart, 167 Mass. 211, 45 N. E. 737, 36 L. R. A. 771, 57 Am. St. Rep. 452. This judgment is approved by Wharton, supra (section 276d), and in Minor’s Conflict of Raws (1901) p. 416 et seq. In Finnes v. Selover, 102 Minn. 334, 113 N. W. 883, it was decided that where a contract was made in one state for the purchase of lands in another, and the money was to be paid in the state where the contract was made, lex rei sitae governed as to title, and lex loci contractus as to the rights of the parties. This doctrine was. followed in a litigation which as Selover v. Walsh reached the Supreme Court in 226 U. S. 112, 33 Sup. Ct. 69, 57 L. Ed. 146 (decided below 109 Minn. 136, 123 N. W. 291). While the highest court took pains to state that they were not concerned with the applicability of any given statute of frauds to the contract in hand, but only with an alleged violation of the federal Constitution, by such application, occasion was taken- apparently to approve the doctrine of Poison v. Stewart, supra. See, also, the converse of the situation in Kryger v. Wilson, 242 U. S. 171, 37 Sup. Ct. 34, 61 L. Ed. 229. In the latter cause the courts of North Dakota had applied the lex rei sitae, and the Supreme Court held that such application was “purely a question of local common law” and not a matter with which the Supreme Court of the United States was concerned.

While the writer of this opinion yields individual assent to the reasoning of Poison v. Stewart, it is the duty of this court to ascertain, if possible, what the law of New York is on this subject, and whether this court of the United States is bound to follow the same. In cases not legally, distinguished from the present, it has been asserted (though without discussion of principle) that the statute of New York is not applicable to a personal and transitory suit there brought to recover damages for breach of a contract affecting foreign land; but that in such action, brought and tried in New York, lex rei sitae is applicable. Abell v. Douglass, 4 Denio (N. Y.) 309; Burrell v. Root, 40 N. Y. 496.

This view has been similarly asserted or assumed in Siegel v. Robinson, 56 Pa. 19, 93 Am. Dec. 775; Bissell v. Terry, 69 Ill. 184; Baird, etc., Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217; and more fully in Meylink v. Rhea, 123 Iowa, 310, 98 N. W. 779. This is probably the rule generally prevailing down to date.² Yet so fluid is the discussion that Cardozo, J., in Reilly v. Steinhart, 217 N. Y. 553, 112 N. E. 469, can refer to the whole matter here discussed as one “often debated and with varying conclusions.”

But so far as the pronouncements of the highest court of this state are concerned, while authority can be found for the dogmatic rule of Burrell v. Root, for the doctrine of Eeroux v. Brown, and for that of Prof. Dicey, no judicial support can yet be discovered for the only view that makes the Michigan statute applicable in this litigation, i. e. that lex loci conditionis must be applied.

In the construction of local statutes the national courts must follow authoritative state decisions, if found of sufficient clearness in the judgments of the courts pf last resort. Re Seward Dredging Co., 242 Fed. 229, 155 C. C. A. 65. The “laws of the several states” to which the courts of the United States yield obedience comprise, not only state statutes, but the decisions of the highest courts. Nashua Bank v. Anglo-American Co., 189 U. S. 228, 23 Sup. Ct. 517, 47 L. Ed. 782; cf. Chicago, etc., Co. v. Kendall, 167 Fed. 66 et seq., 93 C. C. A. 422, 16 Ann. Cas. 560. That a federal court sitting in a given state will follow the statute of frauds of that state, see Buhl v. Stephens (C. C.) 84 Fed. 922. It may be said that, while the federal courts are bound to follow the authoritative state interpretation of a local act, the rule does not apply to the application of the statute. We think the distinction is not one of substance, and Farley v. Carey, etc., Co., 249 Fed. 476, 161 C. C. A. 434, was substantially a case of following the New York Court of Appeals in respect of the application of a very important statute as to which great differences of oninion had existed. We conclude that by the law of New York, which this court is bound to follow, the New York and not the Michigan statute, the lex rei site or lex fori, and not the lex loci conditionis, is the law by which the validity and enforceability of this contract is to be adjudicated so far as it is affected by a statute of frauds.

[8, 9] Assuming now the exclusive applicability of the New York statute, it. was error to take the case from the jury. The plaintiff’s evidence tended to show that the minds of hotel company, acting through its president, and of motor company, operating through its president, vice president, and secretary, had met and united in an agreement that motor company would build and lease what it built to hotel company, in a form agreed upon in every essential and reduced to writing in and by the intended lease prepared for execution by Mr. Robertson.

We express no opinion on this point of fact, further than to say that it was for the jury to pass on. There were some details to be arranged. How unimportant they were (on this record) is shown by the fact that no differences about them have ever been assigned as reasons for refusing to proceed with the matter. This branch of the case, should have been given to the jury with instructions in accordance with the rules well stated and summarized in Scholtz v. Northwestern, etc., Co., 100 Fed. 573, 40 C. C. A. 556. See, also, Morse v. Tillotson, 253 Fed. 340, - C. C. A. -, 1 A. L. R. 1485. Cf. Sanders v. Pottlitzer, etc., Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757.

Throughout the trial and in this court, plaintiff has rested upon Mr. Robertson’s letter of August 31st, as being the note or memorandum, satisfying the statute of frauds.

That this document, if subscribed by motor company’s “lawfully, authorized agent,” was sufficient under the statute, has not been denied; but there was at least a question for the jury as to Mr. Robertson’s authority. •

Doubtless this gentleman had no power whatever to make the contract here alleged, but that is immaterial. Th.e point is: Did he have authority to make the note or memorandum of August 31st? And the solution of this matter depends upon the authority of the officer or officers of motor company who told him in respect of this particular lease to “fix it up”; or (to paraphrase Mr. Robertson’s own testimony) “to prepare as a-lawyer or put in legal shape the understanding that existed between” motor company and hotel company. If there was an understanding or mind-meeting and the lessor’s attorney was told to put that understanding in legal shape, or words to that effect, we have no doubt that such authority included the power and duty of telling the truth about it, which (if plaintiff’s version of the contractual .arrangements is the truth) is just what Mr. Robertson did.

Thus we reach the question of the authority of motor company’s officers.

[10] Here we need go no further than to indicate adherence to the rule that the president or other general officer of a corporation has power prima facie to do any act which the directors could authorize or ratify. Hastings v. Brooklyn, etc., Co., 138 N. Y. 479, 34 N. E. 289.

It would be idle to recite evidence which, if regiven at another trial, may be quite different in effect by reason of other testimony not now before us. It suffices, therefore, to say that on this record there was enough to take to the jury the question whether Mr. Robertson was authorized to do what he did by officers of motor company themselves acting with authority.

We may'mention that no question of damages is presented by this writ; by agreement of counsel such matters were eliminated from the proceedings below.

For these reasons, it is ordered that the judgment be reversed, with costs, and a new trial directed.

1 Harvard Law Review, vol. 23, pp. 1, 79, 194, and 260.

2 It is summarily stated in 39 Cyc. p. 1295, and approved in Story, Conflict of Laws (8th Ed.) §§ 363, 364.