Mayer v. Roche

• Decision Date: 15 November 1909
• Citation: 75 A. 235,77 N.J.L. 681
• Parties: MAYER v. ROCHE.
• Court: New Jersey Supreme Court

75 A. 235

77 N.J.L. 681

MAYER

v. ROCHE.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1909.

Error to Supreme Court.

Action by Milton Mayer against Katharine G. Roche, impleaded. Judgment for plaintiff, and defendant brings error. Affirmed.

See, also, 73 Atl. 516.

R. L. Lawrence, for plaintiff in error.

Tennant & Haight, for defendant in error.

SWAYZE, J. This is an action on a promissory note. The plaintiff in error appears to be a joint maker. The facts were agreed on and the case tried before the court without a jury. It was admitted that the note was signed by Mrs. Roche in this state where she resided, that she received nothing thereon, and was either an accommodation guarantor or surety for the other makers. The note is dated and payable in New York, but it does not appear whether it was delivered in that state or in New Jersey. The case therefore differs from Thompson v. Taylor, 66 N.J.Law, 253, 49 Atl. 544, 54 L. R. A. 585, 88 Am. St. Rep. 485, where it appeared that the wife delivered the note to the husband without limitation of the use he might make of it, and that he transferred it to the payee in New York City. It differs also from Mechanics' Bank v. Chardavoyne, 69 N.J.Law, 256, 55 Atl. 1089, 101 Am. St. Rep. 701, where the wife had clothed her husband with apparent authority to use the note as he chose and he had negotiated it in Brooklyn.

We held in Thompson v. Taylor that the law of the place of contract was decisive on the question of incapacity to contract incident to coverture. The question in this case is whether upon the bare facts above stated the place of contract was New York or New Jersey.

The expression "place of contract" is in itself ambiguous, since it may mean either the place where the contract is entered into or the place where it is to be performed. Dicey on Conflict of Laws, 726; Pritchard v. Norton, 100 U. S. 124, 1 Sup. Ct. 102. 27 L. Ed. 104. In the English and American cases, however, it has come to be used generally as signifying the place where the contract is entered into, and, since the law of that place does not always control, the cases seem sometimes to be more at variance than they really are. In the English courts it has finally been held that the proper law of the contract is the law or laws by which the parties to a contract intended, or may fairly be presumed to have intended, the contract to be governed. Hamlyn v. Talisker Distillery, [1894] A. C. 202, a careful and learned review of which by Judge Schofield is to be found in 9 Harvard Law Review, 371. This rule is substantially that expressed by Lord Mansfield in Robinson v. Bland, 2 Burr. 1077, and more exactly by Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 48, 6 L. Ed. 253, where he said that in every forum a contract is governed by the law with a view to which it was made. The same rule seems to have been in the mind of Lord Denman in Rothschild v. Currie, 1 Ad. & El. (N. S.) 43, and was distinctly stated by Mr. Justice Willes in Lloyd v. Guibert, L. R. 1, Q. B. 115, and by Lord Bowen in Jacobs v. Credit Lyonnais London Agency, 12 Q. B. D. 589, 53 L. J. Q. B. 156. The same rule has been adopted by the United States Supreme Court. Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct 102, 27 L. Ed. 104; Coghlan v. South Carolina R. Co., 142 U. S. 101, 12 Sup. Ct. 150, 35 L. Ed. 951. Mr. Justice Gray in Liverpool & Great Western Steam Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 397, 9 Sup. Ct. 409, 32 L. Ed. 788, used a form of statement which treated the place where the contract was made as the general rule, but allowed an exception where the parties had a different jurisdiction in view. The later form of statement, which treats the proper law of the contract as that which the parties intended or may fairly be presumed to have intended, is the more accurate. It harmonizes with the general rule which leads the courts to give effect to the intentions of the parties as far as they are embodied in words, and it does away with the apparent discrepancy between cases like the one last cited which adopts the law of the place where the contract is made and cases like London Assurance v. Companhia De Moagens, 167 U. S. 149, 17 Sup. Ct. 785, 42 L. Ed. 113, where the court said: "Generally speaking, the law of the place where the contract is to be performed is the law...