Bigelow v. Burnham

• Decision Date: 29 May 1891
• Citation: 83 Iowa 120,49 N.W. 104
• Parties: BIGELOW v. BURNHAM.
• Court: Iowa Supreme Court

83 Iowa 120

49 N.W. 104

BIGELOW

v.BURNHAM.

Supreme Court of Iowa.

May 29, 1891.

Appeal from district court, Buena Vista county; LOT THOMAS, Judge.

Action on a promissory note. There was a verdict, under the direction of the court, for defendant. Plaintiff appeals.Nagle & Birdsall and T. D. Higgs, for appellant.

C. A. Irwin and W. Milchrist, for appellee.

BECK, C. J.

1. The promissory note is in the following language: “Storm Lake, Buena Vista Co., Iowa. For value received I promise to pay Rufus Burnham or bearer eighteen bundred and fifty-eight dollars and sixty-three cents, within one year from date, with interest at seven per cent. ROLLIN BURNHAM. May 2nd, 1885.” The answer of the defendant admits the execution of the note in suit, but alleges that it was executed and delivered in the state of New York, and that under the laws of that state it is usurious and void. The statutes of New York declare that all notes and other contracts, providing for the payment of interest at a rate greater than 6 per centum per annum, shall be void. The evidence shows that the note in suit was signed in New York, and delivered there, and that plaintiff at the time, and both prior and subsequently thereto, resided, and still does reside, in Storm Lake, in this state, and the payee of the note resided in New York. It is not shown where the indebtedness was incurred for which the note was given, nor where the consideration therefor was delivered to and received by plaintiff, nor was there any evidence showing an agreement for the payment of the note at any specified place. The only facts upon which the case was decided are that the note was executed in New York; that the payee resided in that state.

2. It is a settled rule that the law of the place where a contract or a note by its terms is to be performed determines the question of its validity. Butters v. Olds, 11 Iowa, 1;Arnold v. Potter, 22 Iowa, 194;Burrows v. Stryker, 47 Iowa, 477; Story, Confl. Laws, §§ 242, 280, 281; Andrews v. Pond, 13 Pet. 65; 2 Pars. Notes & B. 320.

3. The date and place of execution of a promissory note, which appear on its face and not by mere memorandum entered thereon, raise the presumption that it is payable at that place. The reason of this rule is based upon the fact that the mention of the place is always intended to show that the note was executed there, just as the entry of the date is intended to show the day of execution. In business affairs, and the general affairs of life, the date of an instrument, and the place named in connection with the date, are written thereon, in order to show the day and place of its execution. The law will raise a presumption in accord with this uniform custom of men generally. The place named in a promissory note as the place of execution is usually the place of residence or business of the maker of the paper, and is embodied in the note to show where it may be presented for payment. It follows that the law raises a presumption upon the face of the note of an agreement that it is payable at the place indicated as the place of its execution, and permits it to be enforced under the law prevailing there. 1 Pars. Notes & B. (1st Ed.) 441, 442; Bullard v. Thompson, 35 Tex. 313;Orcutt v. Hough, 54 N. H. 472;Ricketts v. Pendleton, 14 Md. 320.

4. It will not do to presume that the parties entered into a contract which is void under the laws of New York, and that they intended that it should be subject thereto. Such presumption could charge them with the folly or the fraud of entering, with their eyes open, into a void contract. Men are not presumed by the law to act in folly or in dishonesty, but rather that they intended in good faith that their acts shall be valid, and what they purport to be. Nor will we by presumption bring the case under the usury law of New York, which is penal in its effects. Bullard v. Thompson, supra; ...