Arrington v. Gee

• Decision Date: 30 June 1845
• Court: North Carolina Supreme Court
• Parties: JOHN ARRINGTON v. CHARLES J. GEE et al.

5 Ired. 590

27 N.C. 590

JOHN ARRINGTON

v.CHARLES J. GEE et al.

Supreme Court of North Carolina.

June Term, 1845.

The rule, as to interest payable on debts, is regulated by the law of the country in which the contract is made, the law presuming that the contract is to be executed there, unless the parties stipulate otherwise.

And this stipulation, to take the case out of the general rule, must appear on the face of the contract.

A contract, payable generally, naming no place of payment, is to be taken to be payable at the place of contracting the debt, and not where the domicil of the creditor may be.

A bond, taken simply to secure the performance of a contract, wherever it may be executed, must bear the same interest as the original contract, unless it be otherwise expressed on the face of the bond.

When A., a citizen of North Carolina, took a number of slaves to Alabama, and there sold them to B. a citizen of Alabama, who was to give him a bond with sureties for the price of the slaves, and this bond was executed by B. at Mobile, (Alabama) where it bore date, and afterwards brought to North Carolina and here executed by two sureties, citizens of North Carolina, the bond not expressing any place of payment: Held, that the sureties, as well as the principal, were bound for the payment of interest according to the laws of Alabama.

The case of McQueen v. Burns, 1 Hawks 476, cited and approved.

Appeal from the Superior Court of Law of Nash County at the Spring Term, 1845, his Honor Judge DICK presiding.

This was an action of debt upon a bond in the following words and figures, to wit:

MOBILE, JANUARY 6th, 1837.

$ 12,000. Twenty-four months after date, we or either of us, promise to pay to Archibald H. Arrington or bearer, twelve thousand dollars, for value received.

+----------------------+
                ¦CHAS. J. GEE, ¦Seal.  ¦
                +--------------+-------¦
                ¦M. H. PETWAY, ¦Seal.  ¦
                +--------------+-------¦
                ¦STER. H. GEE, ¦Seal.  ¦
                +----------------------+
                

The only question was, as to the rate of interest this bond should bear. The following facts were agreed upon. The obligee, A. H. Arrington, then and now a resident of this State in the year took to the State of Alabama, many slaves, and sold them there to the first named obligor, Charles J. Gee, for the sum of $ 24,000, one-half of which was paid in cash, and for the residue of the purchase money he gave the bond, agreeing at the same time to give for his sureties the other two obligors, both of whom reside in this State, and their residences were well known to the obligee Arrington. The slaves were delivered, and the bond written and signed by Charles J. Gee in Alabama, and delivered to the obligee, Arrington, who brought it to this State, where the other obligors executed it as sureties of Charles J. Gee, upon the facts aforesaid being represented to them. The rate of interest fixed and allowed by the law of Alabama, upon contracts after they become due, is 8 per cent. The defendant's counsel prayed the Court to instruct the jury, that, there being no place of payment designated by the terms of the bond, it was, in law, to be paid where the obligee resided, and therefore bore but six per cent interest. The Court refused to give this instruction, but charged the jury, that, from the face of the bond, and the facts agreed, the plaintiff was entitled to interest on the bond according to the laws of Alabama. The jury rendered a verdict for the plaintiff allowing Alabama interest, and from the judgment thereon the defendants appealed.

B. F. Moore for the plaintiff .

1. The contract was made in Alabama. Clearly, it

was as to the whole subject matter thereof and as to the principal.

The signing of the sureties is but a part of the contract, and, when completed, refers back to the time and place of contract. Story's Confl. Laws, 279 & 286.

If this be not so, then there are two contracts by the same instrument and deducible from one and the same language.--And if this be not so, something still more absurd, to wit, the governing the contract of the principal debtor by that of the surety, when the latter has undertaken expressly to secure the contract of the former.

Inconvenience of any other rule, as where several sureties reside in different States having different rates of interest, and different customs affecting contracts. If the interest here was 10 per cent, would the sureties be bound for that interest, and the principal for 8 per cent.

2. If the contract was made in Alabama, it is governed altogether by the laws of Alabama, unless performance is to be elsewhere. Story's Confl. of Laws, 240, 263, 271.

In all cases where the language is not directly expressive of the actual intention of the parties, but is to be tacitly inferred. Note dated in Dublin and sued in England, and payable in pounds, is payable in Irish pounds. Story's Confl. of Laws, 272.

If two contract in another country, the lex loci governs, unless there be a clear intention to the contrary. Story's Confl. of Laws, 273.

Contract between foreigner and natives, in the country of the latter, is governed by the laws of the natives. Story's Confl. of Laws, 274, 276, 278, 279.

3. If performance is to be elsewhere, the contract is to be governed by the laws of the place of performance. But performance is to be made at the place of contract, where no other place is expressly stipulated, or where the contract is payable any where. Story's Confl. of Laws, 282 and note 3, 283, 272, 317 and note 3. 2 Hay. 5.

4. Forbearance of money due is like a loan of money, and such advances, where no place is designated, are reimbursable at the place of advance. Story's Confl. of Laws, 284, 287. Winthrop v. Carleton, 12 Mass. Rep. 4.

5. When foreign security is taken, it does not alter the locality of the contract, with regard to interest. Story's Confl. of Laws, 287, 288, 289, 290, 291 and note, and note to p. 243, 293, 293c and note. 2 Foublaque Eq. 659, note at bottom of page. C. Cond. Rep. Supreme Court, p. 146. De Wolf v. Johnson, same case, 10 Wheat. 383.

6. When there is no express contract for interest, and it is implied, it is payable when the principal is, and governed by the law of place of performance. Story's Confl. of Laws, 295, 296, which before is shewn to be the place of contract.

Badger, Whitaker & Busbee for the defendants .

RUFFIN, C. J.

The Court is of opinion, that there was no error in refusing the instructions prayed by the defendant's counsel, or in those which his Honor gave to the jury. The contract of sale, from which the bond sued on had its origin, was made and completed in Alabama; and the money, which the purchaser engaged to...