Lee v. . Selleck

Portee, J. If the contract of the indorser was made in the city of Hew York, and in contemplation of its performance there, the plaintiffs were entitled to judgment. The *618 note, though made in Hew York, was payable in Illinois; and its legal effect, so far as the maker was concerned, depended on the law of that State. The engagement of the indorser, though auxiliary in its character, was an independent contract ; and it could only be fulfilled by direct payment to the plaintiffs, who were residents of the city of Hew York. The maker reserved the right to pay the note when it matured, at the bank of the appellant in Illinois. A qualified indorsement would have secured a similar right to the appellant; but as he made no such stipulation, in respect to the performance of his own conditional engagement, he was bound by the general rule of commercial law to fulfill it at the residence of the plaintiffs, unless he could find them elsewhere. (Everett v. Vendryes, 19 N. Y., 437.) His undertaking had its inception in this State as a subsisting contract. The fact - that he wrote his name in Illinois is of no moment, if the engagement was consummated elsewhere. The note, with his indorsement in blank, was intrusted to his own agent for delivery to the plaintiffs in Hew York; 'and it was only on such delivery that it became operative as a mutual contract. (Cook v. Litchfield, 5 Seld., 280, 290; Hyde v. Goodnow, 3 Comst., 270.) It is clear, therefore, that the nature and extent of his liability depend on the law of Hew York, and not on the statutes of Illinois. We are also of opinion, that upon the facts found the appellant would be liable to the plaintiffs, even under the provisions of those statutes. The liability of the assignor is fixed, without resort to a previous suit against the maker, where such a suit would be unavailing. The maker resided in Wisconsin, and the holders of the paper were not bound to pursue him into a foreign jurisdiction, as a condition precedent to recovery against the indorser in Illinois. (Schuttler v. Piatt, 12 Ill., 417; Olcott v. Tioga, Railroad Company, 20 N. Y, 210.) The order of the Supreme Court should be affirmed, with judgment absolute for the plaintiffs. All the judges concurring, Judgment affirmed.