Allshouse v. Ramsay

The opinion of the court was delivered by Gibson, C. J. There are discrepant texts of the civil law touching the question whether a foreign contract is subject to the law of the place where it was made, or the law of the place where it is to be executed; and the commentators by no means agree in their attempts to reconcile them. The common law' rule is, that the validity of a contract is to be determined by the law, at the place of its origin; and those cases which have sometimes been made the basis of another rule, are to be viewed rather as exceptions. Such undoubtedly is the case of a contract which is to be executed in a foreign country, and which is presumed to be framed on the basis of the law at the place of its execution. 2 Kent, 459. Story’s Confl. ch. 8, § 260. But taking the locus contractus in such a case, to be the place of performance, still a presumption arises that the contract is intended to be performed where it is made, if there be not an express or necessary understanding that it is to be performed elsewhere ; and whenever such understanding is not apparent, the law of the contract is the law of the place where it was made. 3 Burge’s Confl. 758. Id. 2 vol. 851. Such are the principles applicable to the subject, as they have been stated by the best British and American jurists; and what is there in the case before us to indicate the existence of an understanding that the contract was to be executed in Pennsylvania 1 The promise was made in New Jersey, where all the parties but the creditor lived; and it was to pay the debt at the end of three months, without regard to place. But the creditor had shortly before removed to Pennsylvania; whence an argument that, as every one must be taken to have intended the legal consequences of his acts, the parties, in this instance, must have intended that payment should be made at the place of his domicil. But an obligation thus to pay, is not even a legal consequence of the contract. Where the place of payment is not designated, the money must be tendered wherever the creditor is to be found within the realm; but ■the creditor is not bound to go out of it to seek him. Co. Lit. 210 [335] b. The rule of the civil law is narrower still, it being said that payment must be made at the place where the contract was made, unless it appear by express provision or necessary inference that another place was intended. 3 Burge’s Confl. 822. As, then, there was no stipulation about place in this instance, the debtor was not bound to follow his creditor to Pennsylvania, which, as regards transactions of this nature, stands in relation to' other states as a foreign country —a principle decided in Buckner v. Finley, (2 Peters, 587,) in which the states of the Union were held to be foreign countries as regards each other, in respect to bills of exchange. This contract must be left, then, to the operation of the particular clause in the New Jersey statute of frauds; and if it be such as that clause requires to be in writing, the plaintiff will derive no advantage from the omission of such a clause in the statute of Pennsylvania. Decisions on the British statute of frauds are received perhaps in all the states, as guides in the exposition of enactments on the same basis; and those of them which pertain to the interpretation of the second clause in the fourth section of that statute, are consequently applicable to the same clause in the statute of New Jersey. The rule extracted from them by Mr. Justice Bdller, in Matson v. Wharam, (2 T. R. 80,) is, “ that if the person for whose use the goods are furnished, is liable at all, any other promise by a third person to pay the debt, must be in writing, otherwise it is void by the statute of fraudsand the existence of liability on the part of him who had the benefit of the original consideration, has been the criterion in the subsequent cases. In that case, it was said that Lord Mansfield had taken a distinction in Mawbray v. Cunningham, which was overruled in Jones v. Cooper, (Cowp. 227,) between a promise before credit given, and a promise after it, supposing the former necessarily to be an original undertaking in all cases, and the latter to be a collateral one; the truth of which is doubted in Roberts on Frauds, 210. But in Peckham v. Faria, (3 Doug. 13; S. C. 26 Eng. Com. Law Reps. 15,) Lord Mansfield himself confirmed the statement of Justice Bdller, and at the same time receded from his former position. It is scarce necessary to say, that the report of that case was not published when Mr. Roberts wrote. In no case, then, since Jones v. Cooper, has it been doubted, that if credit be given to a third person, either a subsequent or precedent promise is a collateral one. Such is the doctrine of Anderson v. Hayman, (1 H. B. 120,) and such it has continued to be down to Darnall v. Tratt, (2 Car. & Payne, 82; S. C. 12 Eng. Com. Law Rep. 36.) Had the courts of New Jersey adopted any other interpretation of their statute, we would be bound by it; but in Dilts v. Parke, (1 Southard, 219,) and Hoppock v. Wilson, (id. 149,) the principle of the British decisions seems to have been followed. What, then, is the case here ? The defendant promised to pay a judgment against another, which is still in force. Had the promise been taken in satisfaction of it, he [336] would have made the debt exclusively his own; but the consideration was only to forbear; and the promise was, in the words of the statute, to pay another’s debt. The very case was put as an illustration by the Chief Justice, in Buchmyr v. Darnall, (2 L. Raym. 1085.) “Where a man is indebted,” said he, “ and J. S. in consideration that the creditor would forbear the man, promises to pay him the debt, such a promise is void unless it be in writing/’ It is clear, then, that the law of New Jersey rules the case; and. that the debt is irrecoverable by it. Judgment of the court below reversed; and judgment for the defendant on the case stated.