Thompson v. Ketcham

Kent, Ch. J. delivered the opinion of the court. This case presents two questions; 1. Was parol evidence admissible that the payment of the note was to be made in New-York ? 2. If it was not, then on whom did the onus lie of proving the law of the island of Jamaica on the subject of infancy ? 1. When this- cause was formerly before the court, (4 Johns. Rep. 285.) the admissibility of the testimony relative to the agreement to pay the note in New-York, was not drawn in question; for the testimony had been admitted without objection. This, point is not therefore to be considered as having been decided in that case. The evidence was not’admissible. The time of payment is part of the contract, and if no time be expressed, the law adjudges that the money is payable immediately. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts. When the operation of a contract is clearly settled by general principles of law, it is taken to be the true sense of the contracting parties; and it is. against esta», blished rule to vary the operation of a writing by parol proof. There is no ambiguity in this case which requires explanation. The note, upon the face of it, was payable immediately, and the parol proof went to alter, in a very material degree, its operation and effect,, by making it not payable, until some distant and-undefined period, when the parties should arrive at New-York. Suppose the note had been put in suit, in Jamaica, before the parties left the island, could it have laid in the mouth of the defendant to say that he was not suable, because the time of payment had not arrived, as he had not arrived in New-York. The force and effect of the contract must be de [193] termined from the" contract itself, and not by proof aliunde. The lex loci is to govern, unless the parties had in view a different place, by the terms of the contract. Si partes alium in contrahendo locum respexerint. This is the language of Huber. Lord Mansfield, in Robinson v. Bland, (2 Burr. 1077.) says, the law of the place can never be the rule, where the transaction is entered into with an express view to the law of another country, and that was the case with the contract in that cause. This case does not fall within the range of those cases in which the courts have admitted, parol proof of an agreement to enlarge the time of performance. In all those cases the agreement was subsequent to the time of the original contract, and admitted the force and effect, of it. (1 Johns. Cas. 22. 1 Esp. N. P. 35. 3 Johns. Rep. 531.) Here the proof, according to the import of the case, went to show the original agreement to be different from what the note declared it to be; and it was, therefore, inadmissible. 2. The testimony being rejected, the next question is, which party was bound to prove the law of Jamaica. The court cannot know, ex oficio, what are the rights and disabilities of infants, or when infancy ceases, by the provincial law of Jamaica. These questions depend much upon municipal regulations; and what the foreign law is, must be proved, as a matter of fact. This was so ruled by Lord Eldon, in Male v. Roberts. (3 Esp. N. P. 163.) The defendant was bound to make out a valid defence, and it therefore lay with him to show that his plea of infancy was good by the law of Jamaica. The court are not to know that fact, without proof; and the good sense and logic of pleading show, that it is the duty of the party who interposes a defence to a contract, otherwise binding, to prove every thing requisite to the validity of the defence. It was enough for the plaintiff to rely upon his demand, until it had been, legally met by [194] the plea. If the defendant had specially pleaded infancy, QQght to have accompanied it with an averment, that by the law of Jamaica he was an infant, and the contract not binding upon him. As the defendant did not prove what the law of Jamaica was on the subject, he did not make out his defence, and the plaintiff is entitled to judgment. Judgment for the plaintiff. .