Jones v. National Cotton Oil Co.

• Decision Date: 07 February 1903
• Citation: 72 S.W. 248
• Parties: JONES v. NATIONAL COTTON OIL CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 248

JONES v. NATIONAL COTTON OIL CO.^*

Court of Civil Appeals of Texas.

February 7, 1903.

Appeal from district court, Bowie county; J. M. Talbot, Judge.

Action by J. F. Jones against the National Cotton Oil Company for breach of contract of sale. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

P. A. Turner, for appellant. Glass, Estes & King, and Scott & Head, for appellee.

RAINEY, C. J.

Appellant sued to recover of appellee damages for the alleged breach of an oral contract by the terms of which appellee was to deliver to appellant cotton seed hulls and meal at a specified price. The defendant pleaded the law of Arkansas, under the provisions of which no recovery could be had in that state. A trial was had before the court without a jury, and judgment rendered for defendant.

Conclusions of Fact.

The conclusions of fact of the trial court are supported by the evidence, and same are adopted by this court. They are as follows: "(1) I find that the plaintiff and the defendant about the 1st day of September, 1901, entered into a contract whereby the defendant agreed to furnish and deliver to plaintiff the cotton seed meal and hulls described in plaintiff's petition; that defendant afterwards refused to deliver said meal and hulls to plaintiff; that the plaintiff agreed to pay, and the defendant agreed to accept, $3 per ton for the hulls, and $18 per ton for meal. (2) That plaintiff failed to get said hulls and meal from defendant, and that the difference in price to be paid, and the price he had to pay for such hulls and meal in order to feed his stock which he had gathered, amounts to $1,229.70, and that plaintiff, by reason of the refusal of defendant to deliver said meal and hulls, has been damaged in said sum. (3) I find that the defendant held out M. F. Borham as its authorized agent, and I find that he was authorized by defendant to make said contract. (4) I find that said contract was made and was to be entirely performed in the state of Arkansas. (5) I find that the law of Arkansas relating to the making, construction and enforcement of said above contract is section 3470 of the statutes and laws of Arkansas, and is as follows: `No contract for the sale of goods, wares and merchandise, for the price of $30 or upwards, shall be binding on the parties, unless, first, there be some note or memorandum signed by the party to be charged; second, the purchaser shall accept a part of the goods so sold, and actually receive the same; or third, shall give something in earnest to bind the bargain or in part payment thereof.' And said law is in force now and was in force when said contract was made. (6) I find that no memorandum or note of said contract or sale was signed by either of the parties to this suit; that the purchaser, the plaintiff, did not accept and actually receive any part of said hulls and meal; and the plaintiff did not give anything in earnest to bind the bargain or in part payment thereof. (7) I find that the plaintiff did not perform any part of the said contract. That he was willing and demanded its performance, but that defendant refused to do so. The plaintiff was willing to perform his part of it."

Opinion.

The contract, for a breach of which a recovery is sought, was made in Arkansas, and was to be performed there. By the laws of that state, it was not enforceable there. Such a contract, if made and performable in this state, would be enforceable. The question, then, is, will the courts of this state grant relief, under the circumstances, notwithstanding none could be had in Arkansas, where the contract was made and was to be performed? The provision of the law of Arkansas affecting the contract reads: "No contract for the sale of goods, wares and merchandise, for the price of $30 or upwards, shall be binding on the parties unless, first, there be some note or memorandum signed by the party to be charged; second, the purchaser shall accept a part of the goods so sold, and actually receive the same; or third, shall give something in earnest to bind the bargain or in part payment thereof." The contention of appellant, in substance, is that said law does not affect the validity of the contract, but that it only prescribes the kind of evidence by which it must be proved, and therefore, the contract being of such a nature as would be enforceable in this state if made here, the courts will enforce it here, though it could not be enforced in Arkansas; in other words, that the law of Arkansas does not affect the right, but only the remedy. Appellant cites numerous authorities to support this contention, which hold, in effect, that a valid contract entered into in one state, and enforceable there, will not be enforced in another state, where the statutes of fraud would prevent a recovery. The authorities on this proposition are not in harmony; many of the states holding, in effect, that a contract not obnoxious to the statute of fraud where made or to be performed will be enforced, though, if made in those states, it would be obnoxious to such statutes. Miller v. Wilson, 146 Ill. 523, 34 N. E. 1111, 37 Am. St. Rep. 186; Gring v. Vanderbilt, 13 N. Y. St. Rep. 457; Eldridge v. Heaton, 7 Ohio Cir. Ct. 499; Allshouse v. Ramsey (Pa.) 37 Am. Dec. 417; Anderson v. May, 57 Tenn. 84; Forward v. Harris, 30 Barb. 338; Ringgold v. Newkirk, 3 Ark. 96; Scudder v. Bank, 91 U. S. 406, 23 L. Ed. 245; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331. In this state a contract made in another state, and enforceable there, will be enforced in this state, though, if made here, it would not be enforceable. Ryan v. Railway, 65 Tex. 13, 57 Am. Rep. 589; Thomas v. Telegraph Co. (Tex. Civ. App.) 61 S. W. 501. But no case is cited, and we know of none, which holds that a contract not binding in the state where made and performable will be enforced in another state, though if made in the latter it would be enforceable. The validity and enforcement of a contract must be tested by the laws of the state where made and performable. In Life Association v. Harris, 94 Tex. 35, 57 S. W. 638, 86 Am. St. Rep. 813, our Supreme Court say: "The leading principle is that the law is to govern to which, `it is just to presume, they [the parties] have intrusted themselves.' Unless a contrary intent is to be deduced from the transaction, the presumption is that the parties contracted with reference to the law of the place where the contract was made; but, if they have fixed a different place for the performance of it, the law of that place is to govern, unless something else appears, showing they had a different intention." In Shelton v. Marshall, 16 Tex. 354, it is said: "It is a universal principle that a contract which is invalid by the law of the state where made will be held to be invalid in all other places or countries where it may be drawn in question." In Cantu v. Bennett, 39 Tex. 310, it is said: "A contract not valid where made is valid nowhere else. As contracts relate either to movable or immovable, or, to use the phraseology of our own law, to personal or to real, property, the following distinction is taken; if...