Imágenes de páginas
PDF
EPUB
[ocr errors]

6

very carefully, as the question of jurisdiction to which they belong is an important one in serving notices, bringing suits, and in all legal proceedings. The personal ability or disability of a party to make a contract is often decided by the law of the party's domicile,' and the validity of an assignment for the benefit of creditors is tested by the law of the assignor's domicile.' The law of the owner's domicile determines whether his property is real or personal, as well as the right to its possession and the validity of its transfer.' The residence of the parties, the place in which the contract is executed and delivered, and the location of the subject matter of the contract or the place of performance may one and all have much to do in determining the validity, interpretation, enforcement, etc., of the contract, and the customs and usages under which the work shall be execnted and paid for. The law that should govern is the law by which the parties intended to be governed, and if that be expressed it will govern. If it be not expressed, then there are certain presumptions which are conclusive of the parties' intention, These are: 1. “ That an agreement to perform an act in a certain place is made in reference to the law of that place. 2. That an agreement to perform an act without designating a place for performance is presumed to be made with reference to the law of the place at which the agreement was made” If it appear from the face of a contract made in one place that it is to be performed in another place its validity, nature, obligation, and interpretation will be determined by the law of the place of performance, but not its legality, it seems. If no place of performance is designated in the con tract, or it may be performed anywhere, it will be governed by the law of the place where it was made. A contract made in one state to be performed partly in that state and partly in other states will be governed by the law of the place where made ;' but when a contract was made in one state for a building to be erected in another state the law of the state where the contract was performed-i. e., the house built-held with regard to mechanics’ liens.' In building and construction contracts the place of performance is usually named in the description of the subject matter, the site or locality; but whether the rule will hold hard and fast may be doubted, for many exceptions and contrary decisions have arisen under the conflict of laws of different places. If the full intention of the parties cannot be ascertained from the contract, the custom or usage of the place where the contract was made may be shown to assist in its interpretation. If free from obscurity the intention as expressed will hold unless it be proved that the

Matthews o. Murcheson, 17 Fed. Rep. 6 3 Amor. & Eng. Ency. Law 544, 561-2 ; 760 [1883]; Spearman o Ward, 8 All. Bauk v. Hall (Pa ), 24 Atl. Rep. 665 ; acRep. 430; 3 Amer. & Eng. Ev. L'w corit Leuke's Digest of the Liw of Con. 573.

tracis 207: Cartwright r. Railroad Co. * 3 Amer. & Eng. Ency. Low 573.

(Vt ), 9 Atl. Rep. 370 (1887) 23 Amer. & Eng. Ency. Law 574

63 Amer. & Eng Elicy. Liw 560. * Brown o. Amer. Financ· Co , 31 Fen. ? Birder . Carnie, 44 N. J. Law 208; Rep 516 ; West. Un. Tel. Co. Endank Thurman o Kyle, 71 Ga. 628. (Ky.), 38 S. W. Rep. 1068.

4

6

interpretation would be different according to the law of the place wheru the contract was executed.' When it is not clear that the contract is to be performed in a place designated, it is a general rule that the rate of interest, the penalties of usury, the ceremonies to be performed, such as those required by the registry laws, the statute of frauds, and special statutes pertaining to the subject matter, all depend upon the laws of the place where the contract is drawn, signed, and delivered, or where it is purported to have been entered into. · It is often said that if a contract is valid and binding where made, it is valid and binding everywhere, and if void or illegal where made, it is generally held void and illegal everywhere else. This is generally so unless the contract is contrary to good morals or repugnant to the policy of the state where it is to be enforced.' A contract that is valid when made is not affected by a change in the public policy of the state;' and it has been held that where a contract is valid at the time when it is sought to be enforced the fact that it was against public policy when made, is immaterial. The operation of a contract and the rights of the parties under it, so far as such rights depend upon the construction and validity of the agreement or on questions of sufficiency of performance, are governed by the laws of the place where the suit is brought, as are also questions of the remedy to be allowed and the manner of enforcing the contract. A discharge of a con

A tract by the law of the place where it was made is generally held a discharge everywhere; but a discharge by the law of a place where it was not made or to be performed will not be a discharge of it in other countries.' All suits must be brought within the time prescribed by the statute of limitations which prevails in the place where the action is brought, yet the law of the place where the contract was made may limit the time in which a a suit may be brought, for no action can be brought in another place where a greater length of time is allowed or where there is no limitation at all." The place of contract is not the place where a note or bill is made, drawn, or dated, but the place where it is delivered from drawer to drawee, from promisor to payee, from indorser to indorsee. A contract is made and determined by the place in which it was completed. Therefore a contract made by a traveling agent which required ratification by his employer was deemed to have been made at the place where tho ratification was given.''

The author has dwelt upon this subject to show the necessity of describing the parties, their residence, and the place where the contract is entered into and to be performed, more than for the purpose of explaining the laws by "3 Amer. & Eng. Ency. Law 561.

& St. P Rý. Co. (C. C.), 62 Fed. Rep. 904, 2 Winter v. Baker, 50 Barb. 432 (1867] ; 63 Amer. & Eng Ency. Law 575. 3 Amer. & Eng. Ency. Law 552–3.

? 3 Amer. & Eng. Eucy. Law 581–2. 33 Amer. & Eng. Ency. Law 554; Union 8 3 Amer. & Eny. Ency. Law 583-4. See Locomo. Exp. Co. v. Erie Ry. Co., 37 N. J. other cases cited. Law 23 (1873).

Overton v. Bolton, 9 Heiskell 762 4 Stephens 0. Southern Pac. Co. (Cal.), 41 (1872). Pac. Rep. 783.

10 Schuenfeldt v. Junkerman, 20 Fed. 5 Hartford Fire Ins. Co. v. Chicago, M. Rep. 357 [1881].

10

which the contract will be governed. To do the latter in a few pages or even chapters would be out of the question, for it embraces the whole subject of conflict of laws, one of the most confused and perplexing subjects in the study of law.

59. Time When Contract was Made or Entered Into—Day or Date.Of equal importance is the date of a contract, which is usually inserted in the following phrase: This......day of ...... in the year....... Every engineering, as well as legal, document or memorandum should be correctly dated, so much often depends upon the day on which it was made. The validity, enforcement, and time of completion of a contract are sometimes determined by the day or hour when it was delivered. If a longer period than that fixed by law has elapsed since its breach or execution both parties' rights may have been forfeited, and the contract be dead and worthless. This suggests the question as to what completes the contract, or at what time does it become binding. A written contract or specialty is not binding until delivered. It has therefore frequently been held that a deed or bond or note signed on Sunday,' but delivered on some other day of the week, is valid and binding, since such instruments take effect from the time of delivery; and the deed may have been acknowledged on Sunday. The same has been held of other contracts in writing, as an order for goods' written and signed on Sunday, but dated, delivered, and filed on a secular day; a contract to finish a court-house signed by one party on Sunday. To render a contract void because made on Sunday it must have been closed or perfected on that day. The fact that negotiations leading up to the contract took place, or that terms were agreed upon, on Sunday does not render the contract invalid if it were completed on a week-day.' On the other hand a proposition of purchase and sale made on a week-day, but completed and delivered on Sunday, is void.'

If a contract must be made upon a Sunday or legal holiday the terms may be agreed upon, the instrument drafted, signed, sealed, and acknowledged on Sunday, and then delivered upon some succeeding day not a holiday, postdating the contract to agree with the date of delivery. It seems that the contract cannot be delivered on Sunday to another as an agent to deliver upon a week-day, for when a note was signed by two makers on Sunday and delivered by one only on a week-day it was held not to bind the other signer, as he could not authorize a delivery on Sunday. Under such a law it would seem legally proper for the party who could not

McFarland o. Sikes (Conn.), 3 N. E. Rep. 252.

*24 Amer. & Eng. Ency. Law 555, 566, and cases cited.

2:24 Amer. & Eng. Ency. Law 555, note.

• Cameron o. Peck 37 Conn, 556. > Beban o. Obio, 75 Tex. 87.

6 Foster v. Worten, 67 Miss. 540; Moseley v. Van Hoser, 6 Lea (Tenn.) 286.

* Cases in 24 Amer. & Eng. Ency. Law 566.

& Smith o Foster, 41 N. H. 220.

' Bishop un Contracts (Evlg. ed.) $ 544; Davis o. Barger, 57 Ind. 54; and other cases cited in 24 Amer & Eng. Eucy. Law 566.

5

be present on a day following, to take his copy of the contract with him, and to make a delivery to the other party by messenger, express, or through the post-office.

In some jurisdictions contracts made on Sunday, and therefore invalid, may be ratified on some succeeding week-day;' but there are many cases that hold that the ratification must amount to the making of a new contract. The diversity of opinions is dus to the different statutes of the states, and to the view that the courts have taken of Sunday contracts.

It is suggested that courts will have little sympathy with contracts made and executed on Sunday, inasmuch that in nearly all Christian countries and states all labor and business are required to be laid aside on the Sabbath except such work as is necessary or is an act of charity, and parties who de. liberately transgress the law will have little consideration when they seek the law's protection. The courts therefore frequently refuse to have anything to do with cases where Sunday contracts have been made, holding that the party complaining is as bad as the one complained of, denying either party any rights under the contract, and leaving the parties where their illegal transaction has put them.

As to what is necessary construction work, there are few cases reported in the books. If property be exposed to imminent danger or peril it is work of necessity to preserve it.' It has therefore been held proper to gather and handle grain, hay, sap, etc., on Sunday that were liable to spoil or be damaged, and to save logs scattered by storm. A flow of two barrels of salt water a day into an oil-well was held not so injurious that it would make the pumping of it out on Sunday necessary work, and relieve the operator from the penalty imposed by the Sunday law.' Repairs to a mill,' as the cleaning out of a wheel-pit, on Sunday, so as to prevent stopping on weekdays, and thereby shutting down a mill employing many hands, was held not a work of necessity. It has been held that a contractor was not chargeable with negligence for refusing to work on Sunday when by so doing and constructing a sewer he could have avoided injury to a brick wall.“

One is not safe in undertaking any work on Sunday that can as well be done on a week-day.' The fact that a creditor wished to go away immediately does not make it necessary to sign, deliver, or accept on Sunday an order to pay the debt. If one contract to servo another in Alaska, and to give his whole time, attention, capacity, and energy to the business, and to work as directed, at all times, at any place, Sundays and holidays not ex

a

124 Amer. & Eng. Ency. Law 561, 570, 571,

· Parmalee v. Wilks, 22 Barb. (N. Y.) 540.

3 Com o. Funk. 9 Pa. Co Ct. Ren. 277. * Hamilton ". Austin, 62 N H. 575. McGrath o. Merwin, 112 Mass. 467.

• Oleson v. City of Plattsmouth (Neb.), 52 N. W. Rep. 848.

Bucher » Fitchburg R. Co , 131 Mass. 156, 125 U. S. 555; Holcomb o. Danby, 51 V1, 428.

8 Mace v. Putnam, 71 Me. 238; and sco Meader v. Whit , 66 Me. 90.

cepted, he may be required to work on Sundays, and may be discharged for refusing to do so.'

If a contract be not dated, the day on which it was made and entered into and delivered may be proved by evidence. The omission of the date not fatal to the validity of a simple contract, nor of a deed, though it may affect the negotiability of a bill or note.' If an instrument be dated the date inserted will be regarded as the true date unless otherwise proven.'

Nelson o. Pyramid H. P. Co. (Wash.), 30 Pac. Rep. 1096; other cases accord and contra in 24 Amer. & Eng. Ency. Law 559.

5 Amer. & Eng. Ency. Law 77. 8 See 5 Amer. & Eng. Ency. Law 80, 8192.

« AnteriorContinuar »