Mason v. Dousay

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Mason v. Dousay, 35 Ill. 424, 1864 WL 3070, 85 Am.Dec. 368 (Ill. 1864)
• Decision Date: 30 April 1864
• Parties: RICHARD MASONv.WILLIAM DOUSAY.

35 Ill. 424

1864 WL 3070 (Ill.)

85 Am.Dec. 368

RICHARD MASON

v.WILLIAM DOUSAY.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

Assumpsit by appellee against appellant, the judgment in the court below being for the plaintiff.

The case is sufficiently stated by the court.

The errors insisted upon are:

(1) That the finding of the court below upon the issues joined was contrary to the law and the evidence.

(2) That the evidence of the law of Michigan (Comp. Laws of 1857, ch. 31, p. 408, sec. 7) offered by defendant to prove that by that law a verbal acceptance was not valid, was not admitted.

(3) In not allowing defendant to make the defense of the invalidity of the acceptance sued on, under the law of Michigan, where it was insisted such acceptance was made.

(4) That the proof was insufficient to establish a valid acceptance.

(5) In not finding for the defendant.

(6) In holding that the defense, that, by the law of Michigan, a verbal acceptance was invalid, was inadmissible under the general issue.

Burnham & Martin, for appellant.Haines & Story, for appellee.

BREESE, J.

This was an action of assumpsit in the supreme court of Chicago, by Dousay against Mason, as acceptor of a bill of exchange, as follows:

+---------------------------------------+
                ¦“$128.05.¦MASONVILLE, 14th May, 1861.  ¦
                +---------------------------------------+
                

R. MASON, Esq.: Please pay to William Dousay one hundred and twenty-eight 5/100 dollars, and charge to account of

+-------------------------------+
                ¦Chicago, Ill.¦NATHAN D. INMAN.”¦
                +-------------------------------+
                

The case turns upon the question whether the proof establishes a valid acceptance of this draft.

The appellant insists, as the bill was drawn by a resident of Michigan, in favor of a Michigan payee, on a person who had a mill and store and office there, and where he spent a portion of his time, it must be regarded as an inland bill of the state of Michigan, and must be governed by the laws of that state, which require an acceptance to be in writing.

The facts show, and the face of the bill shows, that it was drawn in Michigan, on the appellant in Chicago, and payable there, where the appellant resided and had his place of business. These make the bill, in the opinion of the supreme court of the United States, a foreign and not an inland bill. In Buckner v. Finley et al, 2 Peters, 586, Mr. Justice WASHINGTON, in delivering the opinion of the court, says: “We are all clearly of opinion that bills drawn in one of these (United) States, upon persons living in any other of them, partake of the character of foreign bills, and ought so to be treated.” There can be no doubt, if this were an inland bill, and all the facts connected with it were to transpire in Michigan, the law of that state should be applied to ascertain the rights of the parties.

But where a contract is to be performed in another place, as in the case of a foreign bill, drawn in one state and made payable in another and accepted, the law of the place of performance must govern, for it is reasonable the parties would naturally have in view the laws of the place where the contract is to be performed and to be enforced. 2 Pars. on Notes and Bills, 320. Reference is made in the text to the case of Sherman et al. v. Gasset et al., decided by this court (4 Gilman), wherein Mr. Justice LOCKWOOD, after an able review of all the cases cited on the argument, says: “When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by them in forming it, the lex loci ceases its functions, and the lex fori steps in and determines the time, mode and the extent of the remedy.

In the same book we find, at page 324, the doctrine to be, in regard to bills of exchange or notes, if they be payable in a particular place, they are to be treated as if made there, without reference to the place at which it is written, or signed or dated. And in this the text is supported by the authorities to which reference is made in the notes. One of them is the case of Andrews v. Pond, 13 Peters, 77, in which the supreme court of the United States declared the general principle in relation to contracts made in one place, to be...