Clark v. Gibbs, 7061.

• Decision Date: 05 March 1934
• Docket Number: No. 7061.,7061.
• Citation: 69 F.2d 364
• Parties: CLARK v. GIBBS.
• Court: U.S. Court of Appeals — Fifth Circuit

69 F.2d 364 (1934)

CLARK v. GIBBS.

No. 7061.

Circuit Court of Appeals, Fifth Circuit.

February 10, 1934.

Rehearing Denied March 5, 1934.

Stuart B. Warren, of St. Petersburg, Fla., for appellant.

Wm. G. King, of St. Petersburg, Fla., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Mrs. Ella E. Clark sued the executor of her deceased husband upon a note given to her by her husband the day before their marriage as part of an antenuptial settlement. Pleas of payment and accord and satisfaction were tried before a jury and a verdict directed for the defendant, plaintiff appealing.

We find it necessary to consider only whether the note was fully paid. It reads as follows: "40,000.00. Atlanta, Ga., Nov. 16, 1916. On demand after date I promise to pay to the order of Ella E. Bacheller $40,000.00 at his office in Madison, Maine, without defalcation, for value received. Chas. H. Clark." During 1917 credits amounting to $6,600 were entered on it in Clark's handwriting. After his death on June 1, 1931, in Maine, the executor there appointed, overruling Mrs. Clark's claim to interest on the note and that the credits were really gifts to her, paid her the balance of the principal together with the amount of a legacy given her by will, and took her receipt in full of all claims against the estate. Mrs. Clark now renews her contentions touching the credits and interest. The note was produced to the executor in Maine by Mrs. Clark and the entries upon it are presumptively correct. She has the burden of disproving them. 8 C. J. Bill and Notes, p. 1042; Harrell v. Durrance, 9 Fla. 490. Her incompetency to testify to transactions with the testator was recognized in the trial, but the executor testified that at the time of his settlement with her she said they were gifts. It was no doubt proper under the plea of accord and satisfaction thus to prove what contentions were made and settled, but the self-serving declaration of Mrs. Clark is not to be taken under the plea of payment as proof that the sums credited were gifts. That in such circumstances she said they were gifts is not evidence that they were such. The credits must stand.

Mrs. Clark claims interest from the date of the note in an amount exceeding its principal. As in the case of the credits, her assertion to the executor that she had demanded payment of Clark in his lifetime is not evidence that a demand was ever made. But Mrs. Clark contends that the note made in Georgia was under Georgia law, and by Georgia Civil Code, § 3434, it is provided: "In case of promissory notes payable on demand, the law presumes a demand instantly, and gives interest from date." This note, though executed and dated in Georgia, is payable at the maker's office in Madison, Me., and it is not payable on demand but on demand after date. We think payment could not have been demanded until the day following its date, and then only in Madison, Me., which was Clark's domicile. When persons execute in one state a contract to be performed in another, they may contract with reference to the law of either state; their intention being, as is usual in matters of contract, allowed to control. Pritchard v. Norton, 106 U. S. 124, 1 S. Ct. 102, 27 L. Ed. 104; 5 R. C. L. Conflict of Laws, § 27. When there is no stipulation otherwise, the formalities of execution and often the construction of the words of the contract are referred to the law of the place of its execution, Scudder v. Union National Bank, 91 U. S. 406, 23 L. Ed. 245; but matters relating to the performance or the consequences of a failure to perform are referred to the law of the place contemplated for performance, Pritchard v. Norton, supra; 12 C. J. Conflict of Laws, § 31. The application of the lex loci solutionis is especially well settled in the case of negotiable instruments and in reference to the matter of accrual of interest and its rate when not stipulated therein. Coghlan v. South Carolina R. R. Co., 142 U. S. 101, 12 S. Ct. 150, 35 L. Ed. 951; Andrews v. Pond, 13 Pet. 65, 10 L. Ed. 61; 33 C. J. Interest, § 18; 8 C. J. Bills and Notes, § 153. We cannot doubt that this note expressly made payable on demand after date in Maine, the intended domicile of both parties, looked to the law of Maine and not to the law of Georgia as to all matters relating to its payment or demand therefor and interest consequent on default. In Maine the statutory law did not presume demand and default instantly, but provided: "In an action on a promissory note payable at a place certain, either on demand, or on demand at or after a time specified therein, the plaintiff shall not recover, unless he proves a demand made at the place of payment prior to the commencement of the suit." Rev. St. Me. 1916, c. 40, § 39; continued in force as to this note by Rev. St. Me. 1930, c. 164, § 195. Even when no place of payment is specified and no demand at that place under the above-quoted statute is necessary to establish a...