Nichols & Shepard Co. v. Marshall

• Citation: 108 Iowa 518,79 N.W. 282
• Court: United States State Supreme Court of Iowa
• Decision Date: 22 May 1899
• Parties: NICHOLS & SHEPARD CO. v. MARSHALL.

108 Iowa 518

79 N.W. 282

NICHOLS & SHEPARD CO.

v.MARSHALL.

Supreme Court of Iowa.

May 22, 1899.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Action at law upon a promissory note signed by defendant as surety for Milton W. Gregory. The trial court sustained a demurrer to plaintiff's petition, and plaintiff appeals. Affirmed.Berryhill & Henry and L. Ward Bannister, for appellant.

C. C. & C. L. Nourse, for appellee.

DEEMER, J.

Defendant is a married woman domiciled in this state. On or about the 9th day of July, 1894, she signed the note in suit, in the state of Indiana, at which place she was temporarily visiting, as surety for Milton W. Gregory. The note was made payable at the Indiana National Bank of Indianapolis. The laws of Indiana (section 6964, Burns' Rev. St.) provide that “a married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner; and such contract, as to her, shall be void.” It is insisted on behalf of appellant that, as defendant was domiciled in this state at the time she made the note, her capacity to contract followed her into the state of Indiana, and validated her contract made in that commonwealth, and that the right of a married woman to make a contract relates to her contractual capacity, and, when given by the law of the domicile, follows the person. Our statutes permit the making of contracts of suretyship by married women, and, if appellant's postulate be correct, it follows that plaintiff is entitled to recover. The general rule seems to be, however, that the validity, nature, obligation, and interpretation of contracts are to be governed by the lex loci contractus and actus. Savary v. Savary, 3 Iowa, 272; Boyd v. Ellis, 11 Iowa, 97;Arnold v. Potter, 22 Iowa, 194; McDaniel v. Railway Co., 24 Iowa, 417; Burrows v. Stryker, 47 Iowa, 477;Bigelow v. Burnham, 90 Iowa, 300, 49 N. W. 104. The rule is also well settled that personal status is to be determined by the lex domicilii. Ross v. Ross, 129 Mass. 243. Continental jurists have generally maintained that personal laws of the domicile, affecting the status and capacity of all inhabitants of a particular class, bind them, wherever they may go, and that the validity of all contracts, in so far as the capacity of the parties to contract is involved, depends upon the lex domicilii. Thus, the Code of Napoleon enacts, “The laws concerning the status and capacity of persons govern Frenchmen even when residing in a foreign country.” See, also, Story, Confl. Laws (8th Ed.) §§ 63-66; Whart. Confl. Laws (2d Ed.) § 114. Some of the English cases have also followed this rule. Guepratte v. Young, 4 De Gex & S. 217, 5 Eng. Ruling Cas. 848; Sottomayor v. De Barros, 47 Law J. Prob. 23, 5 Eng. Ruling Cas. 814. But see, apparently to the contrary, Burrows v. Jemino, 2 Strange, 733; Heriz v. De Casa Riera, 10 Law J. Ch. 47. We do not think the continental rule is applicable to our situation and condition. A state has the undoubted right to define the capacity or incapacity of its inhabitants, be they residents or temporary visitors; and in this country, where travel is so common, and business has so little regard for state lines, it is more just, as well as more convenient, to have regard to the laws of the place of contract, as a uniform rule operating on all contracts, and which the contracting parties may be presumed to have had in contemplation when making their contracts, than to require them, at their peril, to know the domicile of those with whom they deal, and to ascertain the law of that domicile, however remote, which in many cases could not be done without such delay as would greatly cripple the power of contracting abroad at all. Indeed, it is a rule of almost universal application that the law of the state where the contract is made and where it is to be performed enters into, and becomes a part of, that contract, to the same extent and with the same effect as if written into the contract at length. Each state must prescribe for itself who of its residents have capacity to contract, and what changes shall be made, if any, in the disabilities imposed by the common law. Thus, in Thompson v. Ketchum, 8 Johns. 192 the note was made in Jamaica. The defense was infancy, according to the laws of New York. It was determined that the transaction was subject to the laws of the place of contract, and that infancy was a defense, or not, according to the...