delivered the opinion of the Court:
Is the judgment in this case, under the pleading and evidence right ?
The single bill sued on is in these words :
“ Three days after date, we, or either of us, promise to pay to David Pugh (of Peter) the sum of four hundred and forty-two dollars ($442.00), for value received, for which we bind ourselves, our heirs, executors or assigns, as witness our hands and seals, at eight per cent interest from date, December 20, 1858.
“Joseph Cameron, [Seal.]
“Samuel Cameron, [Seal.]”
As the facts appear in the bill of exceptions, Joseph Cameron and Samuel were brothers. Joseph, at the time the contract was made, and at the time of the trial, was living in Canoll county, Ohio, and at the time the contract was made, Samuel lived in Hancock county, Virginia, now West Virginia. The plaintiff at that time also lived in Hancock county, and did also at the time of the^trial. Samuel died in Hancock county, and has estate there, and this suit was brought against his administrator. The consideration for the note was a debt, which
The Ohio law at that time allowed eight per cent interest, per annum, to be charged for the loan or forbearance of money. In Virginia, at that time, the whole debt was forfeited by charging more than six per cent interest per annum therefor.
Usury was pleaded by the administrator of Samuel; and the question is: Could the plea avail him ?
This raises two questions:
1st. Could the surety in the bond avail -himself of the defense of usury, if the principal could not?
2d. Could the principal have availed himself of the defense of usury ?
In Freese v. Brownell, 35 N. J. 285, it was held, that a surety for a bank, which could not plead usury, could not himself set up that defense. In Dillingham v. Jenkins, 7 S. & M. 475, it was held, that a surety could not rely upon a failure of consideration, if his principal by means of his declarations could not; and Sharkey, C. J., said : "The consideration does not pass to a surety.
In Rosa v. Butterfield 33 N. Y. 665 was a defense of usury, set up by guarantors to notes of a railroad company, which under the laws of the state of New York could not set up the defense of usury. The referee held the agreement of guarantors, signed by the defendant, void for usury, and gave judgments against the plaintiff, which judgments were affirmed at the general term on appeal, and the plaintiff then appealed to the court of appeals of the state of New York. The court held that as the statute in that state denied to corporations the right to set up the defense of usury, contracts for a greater rate of interest than that allowed by law were, valid when
This is equivalent to saying, as the corporation could not set up the defense of usury, neither could the surety of said corporation set up such a defense.
In Ross v. Woodville et al. 4 Munf. 324 it was held, that “ a purchaser of land having given bond and security for the price without getting a good title, it is competent to him to bind his surety as well as himself, by waiving such a title, as he might have insisted upon, as a condition precedent to the payment of the money. If therefore he does not appeal from an order dissolving an injunction, which was granted him for the want of title, his surety has no right to another injunction on the same ground.”. If sureties were allowed defenses, that existed at the time of the making of the contract, that were not allowed to their principals, great injustice would often be done.
This agreement is only accessorial to that of the principal, and in this case, we conclude, if the principal in the bond could not have pleaded usury as a valid defense, the surety could not.
"Was the bond an Ohio contract? Story in his Conflict of Laws, §241, says: “ Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country.” And in section 280 of the same work, he says: “ The rules already considered suppose, that the performance of the contract is to be in the place, Avhere it is made, either expressly or by tacit implications. But where the contract is either expressly or tacitly to be performed in any other place, then the general rule is in conformity to the presumed intention of the parties, that the contract, as to its validity, nature,
Judge Daniels in delivering the opinion of the court, in Wilson v. Lazier et al., 11 Gratt. 477, said : “ It seems to be well settled that a negotiable note made in a particular country, is to be deemed a note governed by the law of that country, whether it is expressly made payable there or is payable generally, without naming any particular place; since at most under the latter circumstances, it is as much payable in that country as elsewhere.” In Findley v. Hall & Colcord, 12 Ohio 610 the note sued on was as follows:
“ Saute Fe, August 27, 1849.
“ One day after date, we or either of us, promise to pay to Jacob Hall and Jonathan Ooleord, or to their order, the sum of three thousand one hundred and ninety-six dollars, ($3,196.00) for value received, negotiable and payable without defalcation or discount, together with interest at the rate of ten per cent per annum from due.
“J. HOUGHTON,
“Jared W. Folger,
“James Findley.”
The consideration of this note was hire for transporting goods, for which a note was given, and when the former note became due, which was signed by Houghton, Town and Findley, the note not being paid, the plaintiffs attached the goods of Town, and in order to settle the matter, plaintiffs agreed to take at their appraised value the goods attached toward the satisfaction of their .claim, as far as they would go, and to take the note of Houghton, Folger and Findley lor the balance, and on the complete execution of the new note, to give up or cancel the first; this arrangement was made without the knowledge of Findley for he was absent from Sante Fe, and had returned to the state of Missouri. Houghton and Folger thereupon signed the note sued on in the case, and delivered it to one of the plaintiffs who brought
JudgmeNT Affirmed.