Broadhead v. Noyes

• Decision Date: 31 January 1845
• Citation: 9 Mo. 56
• Parties: JAMES O. BROADHEAD, ADM'R, v. MICHAEL J. NOYES.
• Court: Missouri Supreme Court

9 Mo. 56

JAMES O. BROADHEAD, ADM'R,

v.MICHAEL J. NOYES.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO PIKE CIRCUIT COURT.

GLOVER and WELLS, for Plaintiff. The only point made is, that the court erred in sustaining the demurrer. 1. The first three counts of the declaration are good, because the instruments sued on were covenants duly sealed by the law of Kentucky, and must be regarded so here. 1 Starkie Ev. 372; 3 Tomlin's Law Dic. 441; 1 Shep. Touch. 51; 6 Binney, 329; 2 Coke, 274; 2 Bibb, 14; 4 Kent, 452, note C. 2. By the law of Kentucky, 1812, these instruments had the same dignity, force and obligation as sealed instruments and must have the same here. 5 Johns. R. 244; 4 Johns. R. 288; Chitty on Con. 92; 25 Eng. Com. L. R. 263; 1 Rand. 23; 1 Cowen, 320; 1 Bos. and Pul. 360. 3. If the instruments sued on were covenants or have the dignity and force of covenants in Kentucky, then the remedy by action of covenant being an appropriate remedy upon such instruments by the laws of Missouri, the action was well brought. Chitty on Contracts, 94.

PORTER, for Defendant. 1. The defendant in error submits to the court and insists that the decision of the questions raised by the demurrer in this case whether an action of covenant will lie on the instrument in question, depends upon the law of Missouri, and not the law of Kentucky, the lex fori and not the lex loci contractus, and cites Story's Conflict of Laws, p. 475, § 567. in which cases analogous to the one at the bar are cited for the illustration of the principles. 2. That the instruments in question are unsealed, he cites Boynton v. Reynolds, 3 Mo. R. 79, and Cartmill v. Hopkins, 2 Mo. R. 220. and the last case also, as to the point of the effect of defendant's removal from Kentucky, 5 Mo. R. 280, Grimsley v. Riley; 8 Mo. R. 577, Glasscock v. Dodge. Even according to the law of Kentucky in regard to seals as construed by the Court of Appeals under the act of 1812, the instruments in question are unsealed, and cites Dillingham v. Estill, 3 Dana's Ky. R. 21. On the first point the question whether covenant will lie is referable to the remedy and the effect of evidence and not the nature, obligation and construction of the contract, and as conclusive on this point he cites the case of Steele v. Curle, 4 Dana's R. 382, and ultra. The object of the plaintiff in error in bringing covenant in this case is to avoid the statute of limitations. relying upon the decision of the court in the case of Pennington v. Castleman, this question of limitation depending incontestible upon the lex fori, and the defendant submits whether the principle of comity will be permitted in any instance to go this extent.

SCOTT, J.

This was an action of covenant brought by the plaintiff in error against the defendant on three several instruments executed in the State of Kentucky. To the instruments a scroll was affixed by way of seal, but it was not recognized as such by anything contained in the body of the instruments, and consequently by our law, they are regarded as unsealed. The defendant demurred to the declaration and had judgment, from which the plaintiff has sued out this writ of error.

The question arising in this case is, whether if an action of covenant will lie on an unsealed instrument in the State or country in which it is executed or to be performed, must a party who sues in this State on such instrument bring an action of covenant, or must his remedy conform to that given on similar instruments executed in this State?

We will not stop to inquire whether the instruments set out in the declaration are regarded as sealed or unsealed by the laws of Kentucky, we deem that inquiry of no importance in the determination of the question involved in this case; it may be assumed that they are considered as sealed by the laws of Kentucky. Indeed the very investigation into which the plaintiff in error invites us, shows the extreme inconvenience of the principle for which he contends. A citizen of this State holding an instrument on which he is desirous of instituting suit, instead of consulting his own laws,...