Suit by Standart and others as indorsees, against a part of the appellants as makers, and against the others as indorsers, of a promissory note, set out as follows, viz:
“ $2,000. Indianapolis, March, 23, 1858.
Two months after date we promise to pay to the order of M. Wolf \ at the Mercantile BanTc, N. Y., two thousand dollars, value received, without any relief whatever from valuation or appraisement laws.
(Signed,) Hunt & Andersons.
(Indorsed,) M. Wolf. John F. Hill?
Pleadings were filed, issues formed, and the cause tried by the Court; resulting in a finding and judgment for the plaintiffs against all the defendants for the amount of the note, and interest.
The note, it appears, was made and indorsed in Indiana ; and the question is raised upon the pleadings and otherwise, by Wolf and Hill, the indorsers, whether their liability as such, is to be determined by the law of Indiana, where their indorsement was made, or by the law of New Yorlt where the
We suppose it to be clear, that the liability of an indorser of a note, payable generally, withorit any place of payment being specified, is to be determined by the law of the State, or place, where the indorsement is made. Yeatman v. Cullen, 5 Blackf. 240; Edwards on Bills, &c., 186. But the question, whether this be the case in relation to a note made payable in another State than that in which it is indorsed, requires some further examination.
In the case of a note made in one State and payable in another, it is clear, by all the authorities, that the maker will be held liable according to the law of the place where it is payable; as that is the place where his contract is to be performed, and he is presumed to have contracted with reference to the law of that place. Cox & Dick v. The United States, 6 Peters, 112; Story on Prom. Notes, §165. It does not follow, however, because the contract of the maker would be governed by the law of the place of payment, that the contract of the indorser would be governed by the same law. The maker binds himself to pay at the place named in the note for payment, and there his contract is to be performed. The indorser promises, upon certain conditions, which are not expressed in the contract of indorsement, but which are implied by law, that he will pay the note; but not that he will pay it at the place named in the note for payment. His promise is general, for the payment of the note upon the implied conditions; and such general promise, not specially to be performed -elsewhere, is governed by the lex loci con•
The authorities establishing the proposition, that the contract of indorsement in such case, is governed by the law of ,, , • , , , the place where made, and not by that of the place where the note is payable, are clear, and to our minds, satisfactory. Some of them will be noted. In Aymer v. Sheldon, 12 Wend. 439, a bill of exchange was drawn at St. Pierre, Martinique, on a person at Bordeaux, in France, and indorsed by the payees, at the city of Fc-w Yorle. It was held, that the contract of indorsement was governed by the law of Few York, where the indorsement was made, and not by that of France, where the bill was payable.
The same doctrine was held in the case of Allen v. The Merchant’s Bank, &c., 22 Wend. 215, 239. Again, in Everett v. Vandryes, 19 N. Y. (Ct. Ap.) 436, a bill had been drawn in Few Granada, payable in Few York, to one Jimenes, who had indorsed it in Few Granada. The suit was by the holder against the drawer. The Court say, that the indorsement “is considered to be a separate contract, and the obligations of the parties to it are to be determined according to the law of the country where it was made; so that if this was a question between indorser and indorsee, we should have to resort to the laws of Few Granada, to determine what obligations Jimenes assumed by indorsing the bill to the plaintiff.”
In Holbrook v. Vibbard, 2 Scam. 465, a note was made in Few York, payable in Chicago, and indorsed by the payees in Few York. It was held that the liability of the indorsers must be determined by the law of Few York, and not by that of Illinois. In Lowry’s adm’r v. The Western Bank of Georgia, 7 Ala. R. N. S. 120, a note was made payable at the Western Bank of Georgia, and indorsed in Alabama. The contract of indorsement was held to be governed by the law of Alabama, and not that of Georgia. The Court say, “ every indorser of a bill drawn in this State upon another, or upon a foreign country, enters into the contract with a view to the negotiation and payment of the bill there; but this does not,, in any manner, bring his indorsement within the influence of
There are many other cases scattered through the books, to the same effect, but it is unnecessary to collect them here. There seems to be no distinction recognized, in respect to the liability of the indorser of a note or bill, between those payable in, and those payable out of the State or country where they are indorsed; and we think no distinction exists in principle. Here we might, and probably should, drop this branch of the case, were it not that there is a decision in our own reports, holding a contrary doctrine. The case alluded to is Shanklin v. Cooper, 8 Blackf. 41. There, a promissory note, payable in New York, had been indorsed in Indiana, as in the case at bar; and a question arose whether the contract of indorsement was governed by the law of New York, or by that of Indiana, as in the case at bar. The Court say in that case, “We consider the indorsement to be a contract which must be governed by the law of the place where the note is payable, without regard to the place where the indorsement was actually made. The maker, of the note before us, bound himself to pay it in New York, to the payee ór order, and the payee, by the indorsement, directed him to pay it at the same place, to the indorsee. The indorser is, indeed, the drawer of a bill of exchange, in which the maker of the note is the acceptor, and the indorsee the payee ; and it is payable where the note
Again: the same author, (Bills of Ex., § 131,) says: “In respect to foreign bills of exchange, they are generally, as to their validity, nature, interpretation and effect, governed by the law of the State or country, where the contract between the particular parties had its origin. The contract of the drawer is, as to the form, the nature, the obligation and the
These, and numerous other authorities that might be cited, were it necessary, clearly establish the proposition that the contract of the drawer of a bill is, as to its construction and legal effect, to be governed by the law of the place where the bill is drawn, and not by that of the place where it is payable. Indeed, it can not be held otherwise consistently with legal principles which are thoroughly established. A contract to be performed at the place where it is executed, or generally, without naming another place for performance, is undoubtedly to be governed by the law of the place where made. Such is the character of the contract of the drawer of a bill, or the indorser of a note. The drawer of a bill here, payable in New EorJc, promises, that upon the dishonor of the bill and notice to him, he will pay it, not at New Torle, but here, or generally. His contract is to be performed here. A little confusion has crept into some of the books, because of a failure to note the distinction between the contract of the drawer of a bill or the indorser of a note, and that of the acceptor of a bill or the maker of a note. The contract of the acceptor of a bill binds him to pay at the place of acceptance or place named for payment; and his contract, like that of the maker of a promissory note, is, therefore, governed by the law of the place of payment, that being the place where his contract is to be performed. Rot so, however, with the drawer or indorser. Says Mr. Justice Story: “ The accejDtor agrees to pay in the place of acceptance or place fixed for payment; but upon his default, the drawer and indorser do not agree upon due protest and notice, to pay the like amount in the same place, but agree to pay the like amount in the
If the contract of the drawer of a bill, or the indorser of a bill or note, be construed to bind him to pay the money, conditionally, at the place named in the instrument for payment, then, of course, his contract would be governed by the law of the place of payment, because his contract would require performance there. But this would overturn the whole current of authorities, which hold that the law of the place where a bill is drawn, or a note or bill is indorsed, governs the respective contracts. But if, as is laid down by Judge Story, and correctly as we think, the contract of the drawer or indorser of a bill, or the indorser of a note, binds him conditionally, to pay at the place where the bill is drawn or the indorsement made, or generally, and not specially at the place named in the instrument for payment; then the authorities are reconcilable, and in entire harmony with those'that hold'
The case of Rothschild v. Currie, which was relied upon in Shanklin v. Cooper, is probably not now regarded as authority in England; though we are not aware that it has been expressly overruled. In Gibbs v. Freemont, 20 Eng. Law and Eq. R. 555, it was referred toby Alderson B., as of questionable authority, and the decision in that ease would seem to be at variance with it. It was there held that a bill of exchange, drawn in California and payable in Washington, upon being dishonored, was entitled to draw interest at the rate of 25 per cent., the rate fixed by the laws of California, and not 6 per cent, merely, the rate at WasJiington.
The case of Mix et al. v. The State Bank, 13 Ind. R. 521, was like the present, and the decision therein is utterly incon
The Court below, in deciding the cáse at bar, was governed, undoubtedly, by that of Shanklin v. Cooper; but we are of opinion that it can not be reconciled with principle, or the general current of authorities, and that it should no longer be regarded as the law of this State.
The contract of indorsement, in the case at bar,'being governed by the law of this State, it follows, from what has already been said, that the recovery against the indorsers can not be sustained.
The makers of the note complain, also, that the judgment against them is erroneous : First, because there was no joint cause of action shown against them, and Wolf and Hill, the indorsers. There was a good cause of action against the makers, and it was not necessary that the plaintiffs should have made out a good case as to all the defendants, in order to entitle them to recover against those as to whom they made out a good cause. Mix v. The State Bank, supra.—Hubble et al. v. Wolf et al., at the present term.
Second. That the note produced does not sustain the allegations in the complaint as to the place of payment. We perceive no force in this objection.
Third. That the laws authorizing a judgment to he rendered without benefit of appraisement laws, according, to the terms of the note, are unconstitutional and void. This question was considered at the last term, and decided against the ground taken by the appellants, and we do not feel called upon to examine the question again. See Smith v. Doggett, at the last term. 14 Ind. 442.
The judgment as to Wolf and Hill, the indorsers, is reversed, with costs made against them; and as to the other defendants, it is affirmed, with costs.