D. Canale & Co. v. Pauly & Pauly Cheese Co.

Maeshall, J. It does not seem necessary to consider the distinction between a statute of frauds, in terms making specified contracts unenforceable, and a statute declaring certain contracts void, nor deal with the question of whether a statute of frauds is available as a defense without being pleaded. The conclusion we have arrived at renders such ■questions unimportant. There being nothing inherently bad about such a contract as that' in question, if it is valid by the place of the agreement, it should be so treated here, regardless of our statute of frauds. International H. Co. v. McAdam, 142 Wis. 114, 124 N. W. 1042. So the vital question is, Did the court err in holding the contract to be a Wisconsin agreement? It is conceded that, if the place of the contract is Tennessee [544] and its validity is governed by the laws of that state, then the decision complained of is wrong. The trial- court seems to have regarded the agreed place of performance conclusive in favor of the claim that the agreement should be held to be a Wisconsin contract. Such circumstance is not' necessarily conclusive. The place of a contract is a matter of mutual intention. For aids in discovering such intention, there are some, rules, any one of which is ’persuasive, merely, or conclusive, or not of any evi-dentiary value, according to circumstances. The law is thus stated in the International Harvester Co. Case: “As to mere personal contracts the law thereof as to their validity and interpretation, is that of the place where they were made; . . . unless the parties thereto intended that they should be governed by the law of the place of performance, ... or of some other place; . . . but the intended place, as determined by legal presumption in some cases and evidentiary circumstances in others, settles all questions as to validity.” The trial court, not appreciating, as it seems, that the place of performance merely gives rise to an evidentiary presumption, did not make any finding of fact as to what the mutual intention was,- but disposed of the matter as one of law. The place where a contract is made and is to be performed in a physical sense, is presumed to be the place of the contract, in a legal sense; but' that is subject to be rebutted by clear evidence to the contrary. So in case of a contract being physically made in one place and mutually intended to be performed in another, the presumption is, in the absence of efficient evidence to the contrary, that the place of performance is that of the contract, subject to some exceptions not material here. There is no controversy but what the law is as indicated. Counsel for both sides cite International H. Co. v. McAdam, [545] supra, where the subject was fully discussed. So the question “at issue comes down to this: Was there evidence efficiently rebutting the effect of the circumstance that Wisconsin was agreed upon as the place" of performance? There-must be clear, but not, necessarily, direct evidence, in order to overcome such a presumption. ~In solving the vital question suggested we must view the acts of the parties from a common-sense standpoint, presuming that they intended to deal with each other honestly, in the moral as well as the-legal-aspects of the matter, and that when they, in form,, made the oral agreement, they did not intend any idle ceremony, nor to engage in a transaction where either party could take an unconscionable, inequitable advantage of the other, but that they mutually intended to make an agreement binding on both sides. So we have the presumption of intention springing from the place of performance, face to face with the presumption that' the actors in the matter proceeded with the deliberate purpose of creating a mutually binding ^obligation, and also the presumption that neither party intended to infract even moral ethics. Place on one side the mere arbitrary evi-dentiary matter, referable to the circumstance of the place of performance being Wisconsin, and on the other the presumption resting in common sense, common honesty, and moral ethics, and also on such other side the presumption that the representatives of the respective parties knew the law and intended to make a mutually binding trade, — and what result do we see ? The answer to the question suggested ds dependent upon the degfee with which the major, in number, of the presumptions - press upon and convince the. judgment. Had the learned trial judge determined this vital matter of fact from an evidentiary standpoint, instead of disposing of the case upon the ground that, since the place of performance was-Wisconsin, as matter of law the contract' was a Wisconsin [546] contract, we might not disturb the decision; but, looking at the matter without the aid of an initial finding, it seems to us that the evidentiary circumstances, inconsistent with the presumption arising from the agreed place of performance, clearly overcome the latter and, therefore, that the contract ought' to be held to be just what the parties evidently intended it should be; that is, a binding agreement'; hence a Tennessee obligation. It will be noted that we do not overlook the circumstance of the trial court having found the parties to have contemplated that the oral agreement would be reduced to writing. We take that in connection with the finding, in effect, that they purposed making a contract in prcesenti. There is no finding that the parties merely negotiated for, but did not actually close a contract. On the contrary, the findings are, in substance, as already indicated, that' they intended to make a contract in prcesenti and to make evidence of it by a writing. Counsel’s argument that the fact as to the parties having-intended to make a binding contract, should not be given'any efficient evidentiary effect, is ingenious but, in our judgment, not' very logical. It rests on the mistaken notion that the presumption arising from the agreed place of performance is a presumption of law; whereas, as we have said, it is a mere rebuttable inference of fact; or rests on the notion that, as a presumption of fact, it is of such forceful character as to be proof against any inconsistent presumption of less dignity than one of a conclusive character, — one equivalent to a presumption of law, which is not the ease. It is efficiently rebuttable by any direct or circumstantial evidence clearly, though not necessarily conclusively, indicating the contrary. Counsel rely implicitly upon International H. Co. v. McAdam, 142 Wis. 114, 124 N. W. 1042, but' we do not find anything there affording ground for their confidence. In connection with the decision there as .to the place of the con [547] tract, in any particular instance being a matter of intention, it is made plain that an evidentiary presumption in respect to the matter, is efficient only so long as no other exists clearly inconsistent with .it. " ' The question of intention is generally solved, and only solvable, by circumstantial evidence; In‘such a situation as we have seen here, if direct evidence were required to overcome the presumption arising from th** agreed place of performance, the latter would be, in effect, a presumption of law, instead of one of fact, because of the practical impossibility of displacing it. The adverse presumptions here, arising from the acts of the parties, quite well illustrate the old maxim that “actions speak louder than words.” By the Court. — The judgment is reversed, and the cause remanded for judgment in plaintiff’s favor.