Partee v. Silliman

Simuall, J.: Sarah A. Partee, the wife of William B. Partee, co-defendant, was sued in assumpsit by William Silliman, to recover the amount due on a promissory note made and subscribed by the said Sarah A. The errors assigned question the decision of the- circuit court, in granting and refusing instructions ; in admitting in evidence the deposition of Nelson, and in rendering judgment against Wm. B. Partee. The objection taken to the deposition of Nelson, is that he was an incompetent witness. The policy of modern legislation and judicial decision is rather to widen the door for the reception of testimony, leaving it to the jury to determine, as to its credibility and weight. Experience is vindicating this policy of liberality. Courts are more inclined, than heretofore, to give the benefit of all doubts as to competency, to the litigants proposing the testimony. The objection to Nelson, though not specifically stated in the court below, is, that he was a member of the firm, who, are the payees of the note, and indorsers to the plaintiff. It is stated by Bailey in his treaties on Bills, 594, that the in279 dorser is a competent witness, generally, against the acceptor, or drawer, for the plaintiff or defendant, for, though the plaintiffs success in the action may prevent him from calling for payment from the indorser, it is not certain that he will, and if the indorser pay the note or bill, in whole or in part, he may recover from the maker, acceptor or drawer; on this point, there is great vas dilation and uncertainty in the adjudged cases. The exclusion of a party, to a negotiable instrument, from testifying to facts which impeach the validity of the paper in its inception, rests upon grounds of public policy. The reason given by the judges, is that a party, who, by his name, has given credit and currency to the paper, shall not be permitted to prove that it was void — this would be to enable him to impose upon the public, by a fraud. Of this class, is the case of Warren v. Merry, 3 Mass., 27. In Brown v. Babcock, 3 Mass., 29, it was said the rule was confied to negotiable paper, and, that when .the testimony was offered to explain and not invalidate, it was competent; and, in Hill v. Payson, 3 Mass., 559, thé court remarked that the common law rule never went further than to exclude a witness from invalidating an instrument to which he had given credit by his signature, and the later cases confined the rule to parties on negotiable paper who had by their acts given it currency. Such is, also, the rule in Pennsylvania. Bank of Montgomery v. Walker, Serg. & Rawle, 113; Griffith v. Bedford, 1 Rawle, 196. So in Maine. Deering v. Sawtel, 3 Greenl. 191. In South Carolina and Virginia, such parties are not disqualified, because of being on the paper. 2 Bay, 93; 3 McCord, 71; Taylor v. Beck, 3 Rand., 316. In Louisiana, whilst a party to negotiable paper may not be heard to invalidate it at the time it passes from him, yet, it is said the rule is of modern origin, and such person is competent to prove subsequent facts, such as an alteration in the note after indorsement. Shamburg v. Commegro, 10 Martin, 18; Cox v. Williams, 6 ib., 139. In the noted case of Walton v. Shelly, 1 T. R., 206, an exception as to compe [280] tency, was .engrafted, to the effect that parties to deeds or other papers, shall not be permitted to give testimony to invalidate the deed or paper. Subsequently, in Jordan v. Lashbrook, 7 T. R., 759, the rule was replaced on its ancient foundation, that all persons are competent, except such as are disqualified by interest, or are infamous. In Ruth v. Helm, 6 How., 129, Walton v. Shelly, was followed, but limited to those facts which went to invalidate the paper in its origin, or at the time the party passed it off. The maker, against whom judgment had been recovered, was a competent witness for the indorser. Prof. Greenleaf says, subject to this exception (which rests on considerations of policy): Such persons are competent witnesses for or against other parties to the paper, unless they are interested.” 1 Greenl. Ev., 399. If Nelson has been notified of the dishonor of the note, he is liable directly and immediately to the plaintiff, on the indorsement of his firm. This is a primary and independent responsibility, upon which suit could be immediately brought, and having been incurred in Louisiana, where the strict lex mercaboria, prevails, he is obligated, no matter what may be the state of equities and defenses between other parties. If Nelson has not been notified, he is not responsible to the plaintiff, no matter what may be the' result of this suit. • Now, the facts deposed to by this witness, do not impeach the paper in its origin, or at the time it was indorsed. As to every other class of facts, he is as competent as any other witness, unless interested. The note bears date in Louisiana, and is payable there ; so that as a contract, it is domiciled in that state. Moreover, it is proved that Partee and wife were at that time residents of New Orleans. It is a general rule, that a contract, for its validity, obligation, and construction, is to be governed by the law of the place where made. If made with a view to execution elsewhere, then the place of its execution may furnish the rule. But when the locus contractus and the place of performance [281] are the same, there is no difficulty as to the law that applies. There is much discussion among the jurists of the civil law, where one of the contracting parties is , under a disability such as coverture, whether the law of the place of marriage, or of the matrimonial domicile, or of the place of the contract (if the wife enter into a contract in a state other than her domicile), applies to the transaction, as to her competency to do the act. The weight of authority among civilians, is perhaps in favor of the law of the domicile. As we have remarked, Partee and wife were resident in Louisiana, where this note was made. The question is, does the note, by the law of that state, bind her? The Civil Code, art. 1779, requires the authorization of the husband, to capacitate the wife to contract. This authorization in commercial contracts is presumed, if he permits her to trade in her own name, and to execute all her other contracts, where he is himself a party to them. In 1791, a husband and wife were domiciled in Louisiana, the wife placed in the husband’s hands a sum of money, to be used in an adventure in Philadelphia, to be repaid, if he did not return. Many years afterwards, in 1820, the husband died in Philadelphia, never having returned, or repaid the money. On proof made that such contract was valid by the law of the Louisiana territory, the wife was permitted to recover from the husband’s executors in Pennsylvania. Dougherty v. Snyder, 15 Serg. & Rawle, 84, a woman, clum sola, indorsed a note; after marriage, she waived demand and notice. This last contract of waiver, not having been sanctioned by the husband, did not bind her. Marshall v. Overby, 10 La., 162. This authorization must be expressed; if she subscribes a promissory note with her husband, it must be proved that the debt contracted was applied to her use. Durnford v. Gross and wife, 7 Martin, La., 489, the wife was sued for merchandise and services rendered; the defense interposed, was that all her property was paraphernal, which was under the administration of the husband; it was held that the wife was liable for debts contracted for her individ [282] ual use, or for rendering her paraphernal property more productive, or in supporting those marriage charges which she is hound by law to bear. Dickerman v. Regan, 2 Ann., 441. Nor is the authorization of the husband necessary to give validity to her acts, necessary to her administration of her paraphernal estate. Same case. Civil Code La., 4, • art. 910, “ The law is obligatory on all the inhabitants of a state, indiscriminately; the-foreigner whilst residing there, and his property within its limits, are subject to it.” “The form and effect of public and private written instruments, is regulated by the laws of the country where they are to have effect.” Civil Code, art. 2412, “ The wife, whether separated in property by contract, or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during marriage.” In Bank of Louisiana v. Farras et ux., 2 Ann., 49, the note and a mortgage on the wife’s property, in Rapides parish, Louisiana, were dated at Woodville, Mississippi, and perhaps Farras and wife were residents there. The rights and obligations of the parties were adjudicated under the law of Louisiana. This would follow from the rule laid down in the article of the Civil Code last quoted. Contracts and movable property have no situs. Whatever is a valid disposition of personal property according to forms and solemnities of place where the act is done, is good in whatever country a right is asserted under it. The foreign forum refers to the lex loei eontraetios for the validity and construction of the act, employing its own remedial forms in supplying redress. Comity enjoins- upon all civilized countries to furnish to the complaining party, a proper remedy and redress, if he comes into the foreign forum to implead his adversary. Nor can the remedy be denied, unless it conflicts with the interests, the policy, or the morals of the country or the people, where the suit is brought. [283] The testimony tended to show that the contract was such as a married woman owning separate property could make in this state. The note in suit grew out of transactions between Mrs. Partee and her commission merchants in New Orleans. They were her factors for the business and crops of her plantation in Yazoo county. This business was conducted in her own name, and so were the accounts kept. It might be fairly inferable, therefore, that the basis of the indebtedness was supplies for conducting planting operations, the amelioration and improvement of her estate, necessaries for her family, and the education of children. If Mrs. Partee impugned the indebtedness, as not for legitimate objects, it would have been more satisfactory had she supplied full evidence, as to the nature of the dealings, between herself and Nelson & Co., especially in view of the evidence offered by the plaintiff on that point. We think substantial justice has been done, and therefore affirm the judgment.