Savary v. Savary

Woodward, J. The court below gave several instructions to the jury, which are resolvable into the following two: 1. That “before they could find for the plaintiff in any event, they must be satisfied from the testimony, that the.attorneys for th% plaintiff had brought suit by the authority and direction of the plaintiff. 2. That the lex loci contractus, or the law of New York, must govern as to the rights of the parties in relation to the set-off, and not the law of Iowa, where the suit is brought. It is presumed that there was evidence showing that the notes were made in New York. The plaintiff excepts to the above instructions. A verdict was rendered for the defendant. The plaintiff’s right to recover on the note held by him, should not have been-made dependent on the attorney’s authority to sue. Such want of authority, would be ground only for dismissing the suit, at the most. Or, if the attorneys were not prepared to show their power, the defendant might have a continuance. Another view of the matter is, that this want of authority to bring the suit, was not a defence to the note, and was not pleaded as such; -and therefore should not have been put to the jury, with the proper issue of the cause, notwithstanding, any apparent tacit consent by counsel. Being so submitted to them, it forms an immaterial issue; and this being effected by the action of the court, and not of the counsel, a new 'trial should have been granted upon the motion made for that purpose. The lex loci contractus governs as to the nature, validity, and interpretation of a contract, but the lex fori governs in matters 274 pertaining to tbe remedy. And to tbis belongs tbe question of set-off. Tbe rights in relation to tbis branch of tbe cause, were to be governed by tbe law of Iowa, and not by tbe law of New York. See tbe authorities cited by plaintiff’s counsel. In these things, we are of tbe opinion, that tbe District Court erred, and therefore tbe judgment below is reversed, and a writ of procedendo will issue.