McCormick v. Taft

• Decision Date: 05 July 1938
• Citation: 22 N.E.2d 510,61 Ohio App. 200
• Parties: McCORMICK v. TAFT et al.
• Court: Ohio Court of Appeals

22 N.E.2d 510

61 Ohio App. 200

McCORMICK v. TAFT et al.

Court of Appeals of Ohio, First District, Hamilton.

July 5, 1938

Stewart & Beirne, of Cincinnati, for appellant.

Taft Stettinius & Hollister, of Cincinnati, for appellee Robert A. Taft.

Divers & Warm and Mr. George E. Fee, all of Cincinnati, for appellee Jacob Warm.

ROSS Presiding Judge.

The plaintiff brought suit upon a clause in a deed, in which the grantee thereof assumed and agreed to pay a mortgage indebtedness therein specified.

A demurrer to the petition was sustained on the ground that it appeared upon the face of the petition that more than six years had elapsed since the obligation was incurred.

The more favored rule is that the law of the place of execution governs the construction of contracts. 11 American Jurisprudence, 397, Section 116; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am.Dec. 62; State ex rel. Fulton v Heinrich, 48 Ohio App. 455, 194 N.E. 395; Restatement of Conflict of Laws, 408 and 437, Sections 332 and 358. On page 438 of the Restatement, we find: 'On the other hand, when the application of the law of the place of performance would extend to a regulation of the substance of the obligation to which the parties purported to bind themselves so that it would unreasonably determine the effect of an agreement made in the place of contracting, the law of the place of performance will give way to the law of the place of contracting.'

The matter of the statute of limitations being a question of remedy, it is universally considered to be governed by the law of the forum.

Section 11221, General Code, provides: 'An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.'

If the provision contained in the deed is in writing, the grantee is bound; if not, the six-year statute applies, and the grantee may avoid the obligation.

It is obvious that the Legislature of Ohio recognizes the difference between a contract in writing and one signed by the party to be charged. See Section 8621, General Code.

It is to us perfectly obvious that the obligation assigned as the basis for liability in the petition is in writing, and is so alleged.

No direct authority is cited governing the exact question. Those cases in which it is held that the obligation of the grantee is not under seal are beside the point, since it is apparent that the...