National German American Bank v. Lang

• Decision Date: 13 July 1891
• Citation: 49 N.W. 414,2 N.D. 66
• Court: North Dakota Supreme Court

49 N.W. 414

2 N.D. 66

NATIONAL GERMAN AMERICAN BANK, Plaintiff and Appellant, v. GREGOR LANG, Defendant and Respondent

Supreme Court of North Dakota

July 13, 1891

APPEAL from district court, Stark county; Hon. W. H. WINCHESTER Judge.

Action on promissory note. Judgment for defendant. Reversed and judgment ordered for plaintiff as asked for in its complaint.

Reversed.

James G. Campbell and John B. & W. H. Sanborn for appellant.

Leslie Simpson for respondent.

WALLIN J. CORLISS, C. J., concurring.

OPINION

WALLIN, J.

This action is upon a promissory note, of which the following is a copy: "Neimmela Ranch, Mingusville, Montana, 11th March 1889. $ 1,200.00. Ninety days after date I promise to pay to the National German-American Bank, St. Paul, at the bank, St. Paul, the sum of twelve hundred dollars, value received, on act. of the ranch. GREGOR LANG." The complaint charges that the defendant executed this note and delivered it to the plaintiff, and that it is unpaid. The answer admits the execution and delivery of the note and its nonpayment. As a defense the answer alleged that the defendant was, when he made the note, acting as the general agent of one Sir John Pender, and the defendant executed and delivered the note in his capacity of agent of said Pender, and not in his individual capacity; that the money which was raised by the defendant from the bank for the note was used solely for the use and benefit of Pender, to meet the expenses of running his (Pender's) ranch, of which defendant was the manager; that plaintiff accepted the note and advanced the money with full knowledge of all the facts above stated. The answer further avers that the note was given with the consent and approval of Pender, and that the plaintiff accepted the paper and advanced the money, knowing that Pender consented and approved of making the note as it was made. The action was tried by a jury. The plaintiff put in evidence the note described in the complaint. A witness in plaintiff's behalf testified that he had computed the interest on the note at 7 per cent. per annum from its maturity until the date of the trial, and that such interest amounted to the sum of $ 68.59. The witness further testified in substance that he had computed the interest at 7 per cent. after the note fell due, because the legal rate in North Dakota is 7 per cent. upon overdue claims. On cross-examination, and against the plaintiff's objection, the witness was required to testify concerning the laws of the state of Minnesota regulating interest, where the note was made payable. Plaintiff objected to all cross-examination and testimony concerning the rate of interest in the state of Minnesota, upon the ground that the law governing the case was the law of the place of trial; that the presumption of law is that the law of another state is the same as that of the forum. Counsel for defendant then conceded that the legal rate of interest in Minnesota is 7 per cent. The plaintiff rested the case upon said testimony, whereupon the defendant moved the trial court that the plaintiff be non-suited on the following grounds: First, that there is no competent evidence showing the amount claimed by the plaintiff to be due on the alleged note; second, as appears from the note itself, or certain words in the note, there is an ambiguity in its terms which has not been explained; third, there is no evidence in this case that the obligation claimed to have been signed by the defendant imports an obligation on his part to pay the amount specified at all events. The court sustained the motion of defendant and directed the jury to return a verdict for the defendant, to which rulings plaintiff, by its counsel, duly excepted. A statement of the case was settled, which embodied the above rulings, and upon which plaintiff moved for a new trial. The motion being denied, and judgment being entered for defendant, the plaintiff appeals from the same and from the order denying its application for a new trial. The rulings upon the motion for a nonsuit and to direct a verdict are assigned as error in this court.

Counsel for defendant has not argued the case orally, or filed a brief in this court, and the only ground or reasons upon which the trial court proceeded to direct a verdict in defendant's favor are those suggested by the language used by counsel in stating his motion to direct a verdict as above stated. We are entirely clear that the direction to the jury was error, and that the grounds upon which defendant asked for such direction are fundamentally unsound. We remark first that it was error to allow the defendant's counsel against objection, to cross-examine plaintiff's witness concerning the laws of Minnesota regulating the rate of interest there. The witness simply testified in chief to the fact that he had computed interest on the note since its maturity, and that the amount at 7 per cent. was a certain sum, and had said nothing concerning the laws of the state of Minnesota. There were no issues in the pleadings which could render such evidence material. Where a suitor desires to take advantage of the laws of another jurisdiction it is incumbent upon him to allege and show what the laws are in such other jurisdiction, and set forth wherein they differ from the law of the forum. There were no such averments in defendant's answer, and hence all evidence touching the subject-matter was irrelevant and immaterial. In the absence of such allegations, the courts will presume that the law of the place where the contract was made or was to be performed is identical with the law of the forum. 2 Pars. Bills & N. p. 371; Cooper v. Reaney, 4 Minn. 528 (Gil. 413); Leavenworth v. Brockway, 2 Hill 201; Forsyth v. Baxter, 3 Ill. 9, 2 Scam. 10; Brimhall v. Van Campen, 8 Minn. 13 (Gil. 1.) Courts of one state do not take judicial notice of the laws of another state. Pars. Bills & N. p. 334; Whidden v. Seelye, 40 Me. 247; Hoyt v. McNeil, 13 Minn. 390 (Gil. 362); Legg v. Legg, 8 Mass. 99; Holmes v. Broughton, 10 Wend. 75. But in this case the interest after the maturity of the note was computed by the witness, and the amount stated figured at the rate of 7 per cent. per annum. This was proper under the laws of this state, and to clinch the matter counsel for defendant admitted in open court that the legal rate of interest in the state of Minnesota was 7 per cent. The two rates were shown to be identical, and we might add that no testimony was necessary to show the proper rate on an overdue claim. In the absence of contract the law fixes the rate at 7 per cent. on such claims. But, aside from all questions connected with the interest it is obvious that the principal sum named in the note was past due, and hence the plaintiff could not be properly nonsuited on account of failure to show--if he had failed--how much was due him on account of the interest. This view of...