Flato v. Mulhall

Hough, J. This was an action to recover damages for the breach of a parol promise alleged to have been made by the defendants io plaintiff, in the state of Texas, to accept certain drafts to be thereafter drawn by Beauchamp & Alexander, on the defendants, in favor of the plaintiff, for certain advances of money to be made by the plaintiff at defendants’ request, to said Beauchamp & Alexander. The plaintiff was a banker in Texas, and the defendants were cattle dealers, doing business in the state of Illinois. The money was advanced, the draft drawn and the defendants refused to accept or pay the same. The circuit court held that the plaintiff could not recover, and the court of appeals affirmed its judgment. [525] 1. conflict of of wfister*'statesl common law. [524] As the contract for the acceptance was made in Texas, and as the acceptance itself was to have been made in lili [525] n°is> and remedy is sought in this State, i't becomes material to inquire what law is to govern us in determining the rights of the parties. The validity and legal effect of the contract alleged must depend upon the law of the place where it was made. Carnegie v. Morrison, 2 Met. 397 ; Bissell v. Lewis, 4 Mich. 450. The contract for acceptance was, of course, for an acceptance valid by the law of Illinois, where it was to be given ; but as the defendants refused to give any acceptance whatever, the law of Illinois is not material. This suit being for a breach of a promise to accept, made in Texas, the nature and extent of the obligation assumed by the defendants in making such promise, assuming that it has been proved, should properly be determined by the law of that state. Under the previous decisions of this court, however, we cannot take judicial notice of the laws of Texas, and they were not offered in evidence. Counsel for the plaintiff ask us to presume, in the absence of evidence, that the common law is in force in Texas. This presumption can only be indulged with reference to those states which, prior to becoming members of the union, were subject to the laws of England. Texas was a part of the Spanish possessions on this continent, and if the common law ever prevailed there, or now prevails there, it must be by virtue of some statutory provision of which we cannot take judicial notice. As no evidence was introduced, and no presumption can be indulged as to the lex loci contractus, the law of the forum must govern. 2. parol promise to accept draft. The material provisions of our law, in relation to the acceptance of bills of exchange, are as follows : “ Section 533. No person within this State shall be c;hargeci as an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent.” “Section 535. An unconditional promise in writing, to accept a bill before it is drawn, shall be. deemed an actual acceptance in favor of every person [526] to whom such written promise shall have been shown, and who, upon the faith thereof, shall have received the bill for a valuable consideration.” “ Section 537. The preceding sections shall not be construed- to impair the right of any person to whom a promise to accept a bill may have been ■made, and who, on the faith of such promise, shall have drawn or negotiated the bill, to recover damages of the party making such promise on his refusal to accept such bill.” Under the provisions of the section last quoted, a verbal promise to accept a bill may be made the foundation of an action, and if the plaintiff' in this case had either drawn or negotiated the bills in question on the faith of the promise of the drawees to accept them, and in consequence of such refusal he had been subjected to loss or injury, he could maintain this action and recover substantial damages. The plaintiff, however, is not the drawee of the bills, nor has he negotiated them, and he cannot, therefore, recover. The right to recover in a similar case was denied on this ground, in New York, under a statute of which ours is a literal copy. Blakiston v. Dudley, 5 Duer 373. The judgment of the court of appeals is affirmed. The other judges concur.