Lougee v. Washburn

16 N.H. 134 | Superior Court of New Hampshire | 1844

Woods, J.

Upon contracts drawing interest, either by their express terms, or by force of an agreement that is usually implied, to pay interest upon money retained in the hands of a debtor, the rule is, to tax it at the rate which is established by the law of the forum; unless a different rate shall appear to have been settled by an agreement of the parties, not open to any legal exception. The party insisting upon a different rate, must show that it has been so agreed, either in express terms, or else by force of the laws of the place of the contract with reference to which the contract is presumed in law to have been made. For the courts of one country do not take notice officially of the laws of another country, but permit them to be proved, when a knowledge of them is suggested by a party to be requisite for ascertaining his rights in regard to a matter in controversy. The direction of the court in regard to the interest, was therefore correct. It was to no purpose for a party to insist that the contract was made abroad and where a different rate of interest was prescribed, if he refused or was unprepared to show to the court what that rate in fact was. As to the other point. A contract is produced dated “ Compton March 4, 1884.” Why are those words and figures placed there ? Without the least doubt for the same purpose that all the other words and figures there were written : that is to say, for the purpose of settling and preserving the evidence of the terms of the contract, and the liabilities of the party who has signed it. To do that, it is necessary that the place and the time should appear, and to render both those circumstances certain, and to take away all question concerning them, they are inserted in the contract and agreed to by the party who signs it. The date is therefore evidence of a very proper and convincing character to settle the matters of the time and place when and where a contract is made. Barker v. Jones, 8 N. H. 414.

That alone, without further evidence, might have sufficed to settle the construction of the contract. But the domicil of the parties, if proved to have been other than the place of its execution, would have controlled the construction, because it would have afforded evidence that a place for the execution of the contract was intended, different from the place where it was made. Story’s Conf. of Laws, sec. 272, 273. But the question raised by the pleadings was such, that it becomes necessary to consider the date of the contract in connection with the testimony of the witness, as evidence of the domicil of the parties. The two amount to this. Six or seven years before the trial, which would carry the point of time back to 1836 or 1837, both these parties actually lived and had their domicils in Canada. On the fourth day of March 1834, they were both together there. In the absence of any evidence to the contrary, the evidence is not only pertinent but cogent, to prove that the parties resided there at the moment of entering into the contract.

We are therefore of the opinion that the instructions given by the court were correct, and that there must be

Judgment on the verdict.