Gans v. Frank

By the Court, Ingraham, P. J. The facts found in this case were these: a sale of goods by the plaintiffs to the defendant ; that the sale was more than six years previous to the commencement of the action; that all of the parties, then and ever since, resided in Pennsylvania, except one, who is deceased; that by the laws of the state, no action can be commenced, in Pennsylvania, after six years after the maturity of the debt due, on book accounts; and that the defendant H. Frank passed through this state more than six years before the commencement of this action. The defense was the statute of limitations, and the judge found the debt was barred by the statute of Pennsylvania. So far as relates to the statute of limitations of the state of Pennsylvania, I am of the opinion that the statute is not a bar. The respondents do not rely on it as such, in their points. The rule as to contracts is that the lex loci contractus governs as to the nature, validity, construction and effect of the contract, and the lex fori as to the remedy. The application of this rule disposes of any defense arising upon a statute of limitations of a foreign state, where such statute only prohibits the bringing of an action after the time limited in such state. The statute has no effect out of the state, and is not violated by bringing an action in another state or [323] country. If the provisions of the law rendered the contract void, or terminated it in any way, a different rule might be applicable. This question was before the court in Lincoln v. Battelle, (6 Wend. 475.) Ch. J. Savage says, at page 485, “It is well settled that a statute of limitations affects only the remedy, and not the validity of the contract.” He also adds, Mr. Justice Story, after saying if the question was new he would adopt a different rule, “ admits the law to be otherwise, and decided that a plea of the statute of limitations of the state where the contract is made is no bar to a suit brought in a foreign tribunal to enforce the contract.” The other question is whether the action is barred by the statute of this state. The finding is that the defendant S’. Frank passed through the state more than six years before the commencement of the action, but was only here temporarily, and that all the defendants have resided in Pennsylvania since the cause of action accrued. These facts show that the statute had not barred the action. If the defendant Frank had not come into the state before the time when process was served upon him, the statute provided that the limitation should commence from that time. Or, if he came before, and left the state, to reside elsewhere, then the statute is not a bar until, after deducting all the time of residing abroad, the debtor has been in the state for six years. Whether the absence is repeated, or is one continued absence, is immaterial. Under the decisions, there must be full six years spent in the state to make the statute a bar. (Berrien v. Wright, 26 Barb. 208. Wheeler v. Webster, 1 E. D. Smith, 1. Harden v. Palmer, 2 id. 172.) The defendant was not in the state when the cause of action accrued. He never resided here. The statute did not commence to run until the defendant came into the state. That was the time of his passing through the state. As that was temporary, and he continued to reside in Pennsylvania, [324] there is no evidence to sustain a finding that the statute was a bar. [New York General Term, February 3, 1862. Ingraham, Leonard and ClerJce, Justices.] In either view of the case, I think the exception to the decision of the court was well taken. A new trial must be ordered; costs to abide the event.