Hyatt v. Bank of Kentucky
| Decision Date | 28 September 1871 |
| Citation | 71 Ky. 193 |
| Parties | Hyatt v. Bank of Kentucky. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
J. F. & T. W. BULLITT, For Appellant,
Story on Conflict of Laws, sections 299, 265.
Story on Bills, sections 381, 390.
| 14 B. Monroe, 395 | 3 Metcalfe, 197 |
| 18 B. Monroe, 229 | 3 Metcalfe, 301. |
2 Duvall, 108, Graves v. Tilford.
6 Peters, 134, Lessee of Sicord v. Davis.
10 B. Monroe, 88, Dudley v. Price's administrator.
4 Bush, 82, Morgan v. Bank of Louisiana.
4 Bush, 268, Carlisle v. Chambers.
4 Metcalfe, 299, Short & Co. v. Trabue & Co.
7 B. Monroe, 577, Goddin v. Shipley.
14 B. Monroe, 558,Young v. Harris.
15 Indiana, 33, Hunt v. Standart.
2 Strange, 733, Burrows v. Jemino.
5 J. J. Marshall, 475-81, Sneed v. Ewing and wife.
13 Howard, 218, Miller v. Austin.
17 B. Monroe, 645, Piner v. Clay.
2 Scammon, 465, Holbrook v. Vibbard.
4 Devlin's Law Reports, 122, Hatcher v. McMorim.
7 Ala. R. (N. S.) 120, Lowry's adm'r v. Western Bank Ga.
2 Kelly, 168, Cox v. Adams.
1 Ad. & L. (N. S.) 43, Rothchild v. Currie.
6 Massachusetts, 157, Grimshaw v. Bendar.
8 Blackford, 41, Shanklin v. Cooper.
BARR & GOODLOE, For Appellee,
CITED
Wheaton's International Law, 392, 6th edition.
Story on Bills, section 365.
Parsons on Notes and Bills, 531.
Civil Code, sections 111, 146.
11 Indiana, 233, Haven v. Talbott.
4 Bush, 268, Carlisle v. Chambers.
7 B. Monroe, 575, Goddin v. Shipley.
4 Metcalfe, 300, Short & Co. v. Trabue & Co.
14 B. Monroe, 558,Young v. Harris.
1 Salkeld, 285, Price v. Earl of Torington.
2 Salkeld, 690, Pittman v. Maddox.
10 East. 109, Higham v. Ridgway
3 Camp. 379, Hagedon v. Ried.
3 Camp. 305, Pritt v. Fairclough.
3 B. & Ad. 898, Doe v. Turford.
1 Starkie on Evidence, 315-318.
1 Greenleaf on Evidence, section 116.
4 Howard (Miss.) --, Barnard v. Planters Bank.
15 Massachusetts, 380, Wesh v. Barrett.
8 Wheat. 326, Nicolls v. Webb.
5 Howard (Miss.) 179, Ogden v. Glidewell.
5 Howard (Miss.) Bodly v. Scarborough.
9 B. Monroe, 611, Bank of Tennessee v. Smith.
1 Benjamin (N. C.) 609, Poole v. Dicas.
2 Wendell, 369, Butler v. Wright.
15 Connecticut, 206, New Haven Co. Bank v. Mitchell.
4 Hill, 123, Shildon v. Benham.
4 Alabama, 306, Batre v. Simpson.
14 Alabama, 63, Brown v. Steele.
1 Smith's Leading Cases (6th American edition), 499.
1 Gall. 304, The Rapid.
16 Johnson, 438, Griswold v. Waddington.
1 Kent's Commentaries, page 68, section 3.
1 Bos. & Pul. 296, Farmer v. Russell.
2 Phillips's Chancery Reports, --, Sharp v. Taylor.
2 Wallace (S. C.) 78, Brook v. Martin.
11 Wheaton, 258, Armstrong v. Toller.
4 Bush, 82, Morgan v. Bank of Louisville.
11 Indiana, 323, Havens v. Talbott.
13 B. Monroe, 404, Hord v. Chandler.
6 Bush, 34, Bonney, & c. v. Reardon, & c.
10 B. Monroe, 87, Price v. Dudley.
6 Peters's South Carolina Rep. 134, Lessee of Sicord v. Davis.
1 Ad. El. (N. S.) 43, Rothchild v. Currie.
On the 10th of May, 1861, the New Orleans and Bayou Sara Company, by its president, executed to the appellant, J. L. Hyatt, the following note: " Four months after date we promise to pay to the order of Mr. J. L. Hyatt the sum of $1,908.24, for value received." This note was executed in the city of New Orleans, and signed by the president of the company.
The appellant, Hyatt, before the maturity of the paper discounted it to the Bank of Kentucky for a valuable consideration, and indorsed it to that bank. Hyatt at the time was a resident of the state, and the indorsement was made at the banking-house of the appellee in the city of Louisville. The note was sent by appellee at once to the Citizens Bank of New Orleans for collection, and at its maturity was protested for non-payment.
The appellee, on the 8th day of September, 1866, filed a petition in the Court of Common Pleas at Louisville, alleging the presentation of the note for payment at maturity, its non-payment and protest, and due notice thereof to the appellant, and is seeking to recover of him in this action the amount of the note, interest, etc.
On the 25th of May, 1867, the appellee filed an amended petition, alleging, in substance, that by the Code of Louisiana, where the note was executed, it was commercial paper, and the appellant by his indorsement became liable thereon as the indorser of a bill of exchange. The appellee, on the first of May, 1869, filed a second amended petition, in which it is alleged that after the maturity of the note and the protest for non-payment the appellee illegally obtained the possession of the same, and delivered it to the maker without right, and is therefore liable for the debt, etc.
The appellant, in response to the petition and the amendments, denies any notice of the protest of the paper, and insists that by the laws of Kentucky the paper indorsed by him is not commercial paper; that his liability is to be determined by the laws of this state; and the appellees having failed to prosecute the maker to insolvency, he is thereby released.
In answer to the amended petition filed on the first of May, 1869, the appellant states that the effects of the bank at New Orleans, where this note was deposited, were seized by the Confederate authorities, and that appellant, as agent of the marshal of that state, collected the amount of the note in Confederate currency, and paid the same over to those in authority. He also pleads and relies on the statute of limitation as a bar to any recovery either upon the original or amended petitions. The proof is conclusive that by the law of Louisiana, where the note was executed and where the indorsement was made by appellant to the appellee, the note in controversy was commercial paper, and placed on the footing of a bill of exchange; and if the appellant is liable as indorser of a bill, then the question in regard to the notice of protest will be considered. This note having been executed in Louisiana as between the maker of the note and the payee, its legal effect must be determined by the law of that state. This court decided, in the case of Young v. Harris, 14 B. Monroe, 558, that unless the place of payment is different from that where the contract is made the lex loci contractus must govern.
The assignment of a note, as has been often adjudged, is of itself a contract, by which the party making the assignment assumes certain liabilities, to be regulated and determined by the law of the place where the assignment is made, in the absence of a contract or agreement upon his part by which he assumes liabilities created by the laws of another state or place different from the law of the place where the contract or assignment is made.
In the case referred to of Young v. Harris, the assignment of the note was made by the holder in Kentucky, and the note retained in his possession and afterward delivered to the assignee in Cincinnati; and this court held that the mere physical act of writing the assignment in Kentucky was not of itself a contract; but its delivery being essential to complete it, and that delivery having been made in the state of Ohio, the law of that state must determine the rights of the parties; and on the contrary, if the contract of assignment had been completed in Kentucky, the law of Kentucky would have fixed the liability of the parties.
In the case of Goddin v. Shipley, 7 B. Monroe, this court say " That there is no evidence from which it could be inferred that the note, although the name of the payee may have been placed on it in Kentucky, was actually sold or transferred in this state, nor until it was delivered to Walker and Kennett in St. Louis, where they resided." They proceed to say that if the note had been actually assigned in Kentucky for value, and by a citizen of Kentucky, so that there was a complete contract of assignment here, the question as to whether the assignor might be held here as the indorser of a bill is one of doubt, since the assignment itself...
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