Brown v. Case

• Citation: 86 So. 684,80 Fla. 703
• Parties: BROWN v. CASE.
• Decision Date: 22 November 1920
• Court: United States State Supreme Court of Florida

86 So. 684

80 Fla. 703

BROWN v. CASE.

Florida Supreme Court

November 22, 1920

Error to Circuit Court, Pinellas County; O. K. Reaves, Judge.

Action by W. W. Brown against Harry C. Case. Judgment against plaintiff without prejudice to another suit after plaintiff refused to plead further on sustaining of demurrer to replication, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Nature validity, and interpretation governed by lex loci; remedies governed by lex fori. The nature, validity, and interpretation of contracts are governed by the lex loci of the country where the contracts are made or are to be performed; but the remedies are governed by the lex fori.

Statute gives debtor benefit of foreign limitations; statute of forum may be pleaded to action on note not barred where made limitation governed by lex fori. Section 1726, General Statutes of 1906, 'When the cause of action has arisen in another state or territory of the United States, or in a foreign country, and by the laws thereof an action thereon cannot be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state,' construed to give a debtor against whom a cause of action is pending in another state or territory, or in a foreign country, the benefit of the statute of limitations of those jurisdictions if they are shorter than in this state, and does not deprive him of his privilege of pleading the Florida statute, even if the cause of action is not barred by the limitation statutes of any other state or territory, or foreign state.

COUNSEL

Hilton S. Hampton and S. S. Sandford, both of Tampa, for plaintiff in error.

Davis &amp Harris, of St. Petersburg, for defendant in error.

OPINION

BROWNE C.J.

On July 17, 1907, the defendant in error executed in New York City certain promissory notes payable to his own order at the Corn Exchange Bank of New York. Before the cause of action on the notes accrued, the maker absented himself from the state of New York and for more than six years thereafter has resided in the state of Florida.

On the 16th of October, 1919, the plaintiff in error, who was plaintiff below, brought suit in Pinellas county, Fla., against the defendant to recover on the notes. The defendant pleaded the statute of limitations of Florida, and the plaintiff filed a replication setting up 'that, at the time of the making and delivery of said notes, the plaintiff and defendant were both situate in the state of New York; that subsequent to the making and delivery of said notes, and within six years from date of maturity of said notes, and each of them, and when the causes of action accrued thereon and each of them, the defendant was without the state of New York, and has continued to reside without said state;' and that the cause of action was not barred by the statutes of New York.

A demurrer to the replication was sustained, and, the plaintiff declining to plead further, judgment was entered against him without prejudice to his right 'to institute such action as he may be advised where the cause of action accrued,' from which judgment writ of error was taken to this court.

The sole question involved is whether the statute of limitations of Florida, where the action was brought, is applicable, or that of the state of New York, where the cause of action accrued.

It seems well settled, in the absence of a statute to the contrary, that suits on contracts must be brought within the period prescribed by the law of the state where the suit is instituted, otherwise they will be barred, and that in considering the effect of a statute of limitations the lex fori and not the lex loci contractus governs.

This question first came before the Supreme Court of the United States in McCluny v. Silliman (1830) 3 Pet. 270, 7 L.Ed. 676, where the court said:

'It is a well-settled principle that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. * * * Of late years, the courts, in England and in this country, have considered statutes of limitations more favorably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade the effect of those statutes. By requiring those who complain of injuries to seek redress by action at law, within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation.'

This was followed in McElmoyle v. Cohen (1839) 13 Pet. 312, 10 L.Ed. 177, where the court said:

'Such being the faith, credit and effect to be given to a judgment of one state in another, by the Constitution and the act of Congress, the point under consideration will be determined by settling what is the nature of a plea of the statute of limitations. Is it a plea that settles the right of a party on a contract or judgment, or one that bars the remedy? Whatever diversity of opinion there may be among jurists upon this point, we think it well settled, to be a plea to the remedy; and, consequently, that the lex fori must prevail.'

In Townsend v. Jemison, 9 How. 407, 13 L.Ed. 194, the court again considered the question and fully and emphatically reaffirmed its previous decision. The court in that case said:

'The rule in the courts of the United States, in respect to pleas of the statutes of limitation has always been, that they strictly affect the remedy, and not the merits. In the case of McElmoyle v. Cohen, 13 Pet. 312, this point was raised, and so decided. All of the judges...