Pritchard, Ex v. Norton
| Decision Date | 13 November 1882 |
| Citation | 27 L.Ed. 104,1 S.Ct. 102,106 U.S. 124 |
| Parties | PRITCHARD, EX'X, etc., v. NORTON |
| Court | U.S. Supreme Court |
This action was brought by the plaintiff in error, a citizen of Louisiana, against the defendant, a citizen of New York, in the circuit court for the district of Louisiana, upon a writing obligatory, of which the following is a copy:
'State of New York, County of New York: Know all men by these presents, that we, Henry S. McComb, of Wilmington, state of Delaware, and Ex Norton, of the city of New York, state of New York, are held and firmly bound, jointly and severally, unto Richard Pritchard, of New Orleans, his executors, administrators, and assigns, in the sum of fifty-five thousand (55,000) dollars, lawful money of the United States, for the payment whereof we bind ourselves, our heirs, executors, and administrators firmly by these presents. Sealed with our seals and dated this thirtieth day of June, A. D. eighteen hundred and seventy-four.
'Whereas the aforesaid Richard Pritchard has signed an appeal bond as one of the sureties thereon, jointly and severally, on behalf of the defendant, appellant in the suit of J. P. Harrison, Jr., v. The New Orleans, Jackson & Great Northern Railroad Co., No. 9,261 on the docket of the seventh district court for the parish of Orleans:
'Now, the condition of the above obligation is such that if the aforesaid obligors shall hold harmless and fully indemnify the said Richard Pritchard against all loss or damage arising from his liability as surety on the said appeal bond, then this obligation shall be null and void; otherwise, shall remain in full force and effect.
H. S. MCCOMB. [L. S.]
Richard Pritchard, of whom the plaintiff in error is executrix, had, on November 20, 1872, joined in a bond as surety for the New Orleans, Jackson & Great Northern Railroad Company, in a suspensive appeal taken by the latter from a judgment rendered against it in favor of Harrison, in the seventh district court for the parish of Orleans. A judgment was rendered on that appeal in the supreme court of the state, May 30, 1876, against the railroad company, in satisfaction of which Pritchard became liable to pay and did pay the amount, to recover which his executrix brought this action. The condition of this appeal bond was that the railroad company 'shall prosecute its said appeal and shall satisfy whatever judgment may be rendered against it, or that the same shall be satisfied by the proceeds of the sale of its estate, real or personal, if it be cast in the appeal; otherwise that the said Pritchard et al., sureties, shall be liable in its place.' The defendant set up, by way of defense, that the bond of indemnity sued on was executed and delivered by him to Pritchard in the state of New York, and without any consideration therefor, and that by the laws of that state it was void by reason thereof. There was evidence on the trial tending to prove that the appeal bond was not signed by Pritchard at the instance or request of McComb or Norton, and that there was no consideration for their signing and executing the bond of indemnity passing at the time, and that the latter was executed and delivered in New York. There was also put in evidence the provisions of the Revised Statutes of that state, (2 Rev. St. 406,) as follows:
At the request of the defendant the circuit court charged the jury that the indemnifying bond, in respect to its validity and the consideration requisite to support it, was to be governed by the law of New York, and not of Louisiana; and that if they believed from the evidence that the appeal bond signed by Richard Pritchard as surety was not signed by him at the instance or request of McComb and Norton, or either of them, and that no consideration passed between Pritchard and McComb and Norton for the signing and execution of the indemnifying bond by them, then that said bond was void for want and absence of any consideration valid in law to sustain it, and no recovery could be had upon it. The plaintiff requested the court to charge the jury that if they found from the evidence that the consideration for the indemnifying bond was the obligation contracted by Pritchard as surety on the appeal bond, and that the object of the indemnifying bond was to hold harmless and indemnify Pritchard from loss or damage by reason of or growing out of said appeal bond, then that the consideration for said indemnifying bond was good and valid, and is competent to support the action upon the bond for the recovery of any such loss or damage sustained by Pritchard. This request the court refused. Exceptions were duly taken to these rulings, which are now assigned for error, there having been a verdict and judgment for the defendant, now sought to be reversed.
Cephas Brainerd and George H. Bates, for defendant in error.
[Argument of Counsel from pages 126-128 intentionally omitted] Henry C. Miller, for plaintiff in error.
It is claimed on behalf of the plaintiff in error that by the law of Louisiana the pre-existing liability of Pritchard as surety for the railroad company would be a valid consideration to support the promise of indemnity, notwithstanding Pritchard's liability had been incurred without any previous request from the defendant below. This claim is not controverted, and is fully supported by the citations from the Civil Code of Louisiana of 1870, arts. 1893-1960, and the decisions of the supreme court of that state. Flood v. Thomas, 5 Martin, (N. S.) 562; N. O. Gas Co. v. Paulding, 12 Rob. 378; N. O. & C. R. Co. v. Chapman, 8 La. Ann. 98; Keane v. Goldsmith, 12 La. Ann. 560. In the case last mentioned it is said that 'the contract is, in its nature, one of personal warranty, recognized by articles 378 and 379 of the Code of Practice.' And it was there held that a right of action upon the bond of indemnity accrued to the obligee when his liability became fixed as surety by a final judgment, without payment on his part, it being the obligation of the defendants upon the bond of indemnity to pay the judgment rendered against the surety, or to furnish him the money with which to pay it.
The single question presented by the record, therefore, is whether the law of New York, or that of Louisiana, defines and fixes the rights and obligations of the parties. If the former applies, the judgment of the court below is correct; if the latter, it is erroneous. The argument in support of the judgment is simple, and may be briefly stated. It is that New York is the place of the contract, both because it was executed and delivered there, and because no other place of performance being either designated or necessarily implied, it was to be performed there; wherefore, the law of New York, as the lex loci contractus, in both senses being lex loci celebrationis and lex loci solutions must apply to determine not only the form of the contract, but also its validity. On the other hand, the application of the law of Louisiana may be considered in two aspects, as the lex fori, the suit having been brought in a court exercising jurisdiction within its territory and administering its laws, and as the lex loci solutionis, the obligation of the bond of indemnity being to place the fund for payment in the hands of the surety, or to repay him the amount of his advance, in the place where he was bound to discharge his own liability.
It will be convenient to consider the applicability of the law of Louisiana, first, as the lex fori, and then as the lex loci solutionis.
The circuit court of the United States sitting in the district of Louisiana, in a cause like the present, in which its jurisdiction depends on the citizenship of the parties, adjudicates their rights precisely as would a tribunal of the state, according to the laws of the state; so that, in that sense, there is no question as to what law must be administered. But in case of contract the foreign law may, by the act and will of the parties, have become part of their agreement, and in enforcing this, the law of the forum may find it necessary to give effect to a foreign law, which, without such adoption, would have no force beyond its own territory.
This, upon the principle of comity, for the purpose of promoting and facilitating international intercourse, and within limits fixed by its own public policy, a civilized state is accustomed and considers itself bound to do; but, in doing so, nevertheless adheres to its own system of formal judicial procedure and remedies. And thus the distinction is at once established between the law of the contract, which may be foreign, and the law of the procedure and remedy, which must be domestic and local. In respect to the latter the foreign law is rejected; but how and where to draw the line of precise classification it is not always easy to determine.
The principle is that whatever relates merely to the remedy and constitutes part of the procedure is determined by the law of the forum, for matters of process must be uniform in the courts of the same country; but whatever goes to the sub- stance of the obligation and affects the rights of the parties, as growing out of the contract itself or inhering in it or attaching to it, is governed by the law of the contract.
The rule deduced by Mr. Wharton (Confl. Laws, § 401) as best harmonizing the authorities and effecting the most judicious...
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