The opinion of the court was delivered by
This wаs an action on a promissory note executed in Texas, payable in Missouri, and sued on in Kansas upоn attachment and publication service. The trial court held that a defense based on the Texas statute of limitations was good, and the plaintiff appeals.
The petition contained the usual recitаls of a cause of action on a promissory note, including allegations concerning the residence of the plaintiff in Missouri, the residence of the defendant makers in Texas, and set up a copy of the note with its indorsements, viz.:
“Fort Worth, Texas, November 7, 1919.
No. 7596. $3,000.00.
“On May twelfth, 1920, after date, without grace, for value received, I, we, or either of us, prоmise to pay to the order of Guarantee Cattle Loan Company,
Three Thousand and 00/100 Dollars,
At the office of the Guarantеe Cattle Loan Company, Kansas City Missouri, with interest at the rate of eight per cent per annum after mаturity. The makers and endorsers of this note severally waive demand, notice and protest.
(Signed) Clay & Easley.
“Address: Comanche, Texas. By H. R. Clay
“Endorsements: Oct. 31, 1921, cr., $1,308.68. Demand, notice and protest waived. Payment guaranteed. — Guaranty Cattle Loan Company; J. C. Swift, President.”
The principal defense was made by defendant J. M. Easley, who pleaded that “by the laws of the state of Texas, whеre the cause of action arose, this cause of action could not be maintained becаuse of the lapse of time.” The Texas statute of limitations provides that an action on a debt evidеnced in writing shall not be commenced or prosecuted at any time more than four years after the cause of action thereon has accrued.
Plaintiff’s reply alleged the default of defendants at thе place of payment under the terms of the note, and pleaded the Missouri statute of limitations which аllows ten years in which to bring an action upon a written promise for the payment of money.
The Kansas stаtute pertinent to a cause of action which has arisen between nonresidents of this state reads:
“Where the cause of action, has arisen in another state or country, between nonresidents of this statе, and by the laws of the state or country where the cause of action arose an action cаnnot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.” (R. S. 60-310.)
In view of the foregoing, where did the cause of action arise between these litigants? “In Texаs where the note was given,” say defendants. But the giving of a note, which is the making of a contract, does not give rise to a cause of action. Surely every simple business transaction between men does not give рrovocation for a lawsuit. It was not the making, execution, and delivery of this note which gave rise to the cause of action; it was not the promise to pay, but the breaking of that promise — the default of the mаkers to pay the debt at the place and time they agreed to pay it — which gave rise to the cаuse of action. (Bruner v. Martin,
In Bruner v. Martin,
“A cause of action upon a contract does not arise until there has been a breach (1 Enc. L. & P., 1008), and it arises where the breach takes place. (40 Cyc. 83.) The only breach of the contract alleged in the petition was the refusal to pay the amount due under it, and this occurred, presumptively at least, at the residence of the plaintiff, and not in Wyandotte county. Thе words 'where the cause of action arose’ do not refer to the place where the transactions took place out of which the cause of action grew. That was settled for this jurisdiction in Bruner v. Martin,76 Kan. 862 ,93 Pac. 165 , where the reasons for the decision and the authorities bearing thereon are fully set forth.”
Recent cases which accord with Bruner v. Martin in holding that a promissоry note made in one state to be performed in another state is governed by the law of the plaсe of performance, without regard to the place where it was written, dated, or signed, unless the notе itself shows clearly that it should be governed by the law of the place where made, are: Joffe v. Bonn, 14 F. (2d) 50, 52; United Bank & Trust Co. v. McCullough,
See, alsо, Goodrich on Conflict of Laws, 245-248; Conflict of Laws, Restatement No. 4, A. L. I. §§ 384, 385; and note to Bruner v. Martin, in 14 L. R. A., n. s., 776.
The case of Timmonds v. Messner,
The other matters urged in supрort of the judgment have all been noted, but cannot be sustained. Plaintiff cannot be denied the right of appeal because he did not introduce the Missouri statute of limitations. He pleaded it, and the record rеads:
“The Court: Is there anjr dispute about the Missouri statute?”
[Counsel for Defendant] : “No. I don’t think so. . . .”
It is also urged that because plaintiff filed no motion fоr a new trial he cannot be heard on appeal. Why not? There were no trial errors which it was his duty to give thе trial court an opportunity to correct as a prerequisite to this appeal. The one material error assigned is on the trial court’s ruling that plaintiff’s cause of action was governed by the Texas statute of limitations and barred thereby.
The judgment of the district court is reversed.