Poole v. Perkins

• Decision Date: 20 November 1919
• Citation: 101 S.E. 240
• Court: Virginia Supreme Court
• Parties: POOLE. v. PERKINS.

101 S.E. 240

POOLE.

v.PERKINS.

Supreme Court of Appeals of Virginia.

Nov. 20, 1919.

Error to Circuit Court, Wythe County.

Proceeding by notice of motion by Marvin Perkins against F. D. Poole. Judgment for plaintiff, and defendant brings error. Affirmed.

W. B. Kegley, of Wytheville, for plaintiff in error.

Robert Sayers and 8. B. Campbell, both of Wytheville, for defendant in error.

KELLY, J. On January 1, 1912, W. T. Poole and his wife, F. D. Poole, executed a joint promissory negotiable note to the order of Marvin Perkins. Poole and wife and Perkins at that time resided and were domiciled in the city of Bristol, Tenn. More than a year after the execution of the note, but prior to the institution of this suit, all of the parties, makers and payee, became and have since remained residents of and domiciled in Virginia. The note was dated, signed, and delivered in Tennessee, but upon its face was payable at a bank in the city of Bristol, Va.

According to the laws of the state of Tennessee, in force at the time of the execution and delivery of the note and for some time thereafter, the contracts of a married woman were voidable, and could not be enforced against her, where there was a plea of coverture; but at the time of the institution of this suit the disability of coverture had been removed by statute in Tennessee, so far as concerns the contracts of married women made subsequent to the passage of the statute.

This is a proceeding by notice of motion brought by Perkins against Mrs. F. D. Poole in the circuit court of Wythe county to recover judgment on the note. All matters of law and fact having been submitted to the court without the intervention of a jury, a judgment was rendered against her, and she thereupon obtained this writ of error.

There were other issues in the lower court, but the sole question before us is whether Mrs. Poole's common-law disability of coverture at the time of the execution of the note can be successfully relied upon by her as a defense.

If the note had been made payable in Tennessee, it is clear that her plea of coverture would have been good. The reason and au thority for this proposition are perfectly familiar and require no elaboration or citation. If the obligation can be enforced against her at all, it is because the note was payable in Virginia. Does the fact that it was so payable enable us to apply the law of this state in determining her capacity to make the contract? If so, it is conceded that she was liable, and that the judgment complained of is right.

It would be idle to say that the question is free from difficulty. There are substantial reasons for a difference of legal opinion, and the authorities upon the subject are by no means in harmony. The exact question has never been decided in this state. It would be impossible in an opinion of reasonable length to review all of the authorities bearing upon the subject, and it would perhaps be unprofitable to do so, if such a thing were feasible.

In the case of Freeman's Bank v. Ruck-man, 16 Grat. (57 Va.) 126, Judge Moncure announced the following general rule, upon which there is practically no conflict of opinion:

"It is a general rule that every contract, as to its validity, nature, interpretation and effect, or, as they may be called, the right, in contradistinction to the remedy, is governed by the law of the place where it is made, unless it is to be performed in another place; and then it is governed by the law of the place where it is to be performed."

This familiar and well-settled rule, however, cannot be said to be conclusive of the instant case, because as the same was applied by Judge Moncure, and as most commonly illustrated by decided cases, it does not relate specifically to the capacity of the parties to make a contract, but to the validity and effect of a contract made by concededly competent parties.

Prof. Raleigh C. Minor, in his excellent "Conflict of Laws, " says at page 410:

"The only law that can operate to create a contract is the law of the place where the contract is entered into (lex celebrationis). If the parties enter into an agreement in a particular state, the law of that state alone can determine whether a contract has been made. If by the law of that state no contract has been made, there is no contract. Hence, if by the lex celebrationis the parties are incapable of making a binding contract, there is no contract upon which the law of any other state can operate. It is void ab initio."

And the author in support of the text quotes from the opinion in Campbell v. Crampton, 2 Fed. 417, 423, as follows:

"Upon principle no reason can be alleged why a contract, void for want of capacity of the party at the place where it is made, should be held good because it provides that it shall beperformed elsewhere, and nothing can he found in any adjudication or text-book to support such a conclusion. It is a solecism to speak of that transaction as a contract which cannot be a contract because of the inability of the persons to make it such."

Strong support for the opinion thus advanced is also found in the case of Union National Bank v. Chapman, 169 N. T. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St Rep. 614, in the Illinois case of Burr v. Beckler, 264 Ill. 230, 106 N. E. 206, L. R. A. 1916A, 1049, Ann. Cas. 1915D, 1132, and in some of the comments and citations contained in the annotation to these cases, as well as in the note to Mayer v. Roche (N. J.), 26 L. R. A. (N. S.) 763, hereinafter mentioned.

In opposition to the above view is the following pronouncement by one of the most eminent of Virginia law writers, Prof. John B. Minor:

"The law which is to govern in relation to the capacity of parties to enter into a contract is much disputed by the continental jurists of Europe. In general, however, they hold that the law of the party's domicile ought to govern. Story, Confl. Laws, § 51 et seq. But the doctrine of the common law is well established, both in England and America, that the capacity of parties to contract is with some few exceptions determined by the lex loci contractus— that is, the law of the place with reference to which the contract is made, which is usually the place where it is made, unless it is to be performed in another place or country, and then the law of that country." 3 Min. Inst. p. 143.

We are disposed to accept the latter as the rule applicable to the instant case, for reasons which we shall now point out.

It is to be observed, in the outset, that with practical unanimity the authorities, even those relied upon by the plaintiff in error, hold that the disability of coverture arising from the law of the married woman's domicile does not follow her into other states, and that if she goes into another state than that of her domicile, and makes a contract valid by and to be performed in accordance with the laws of such other state, she will be bound thereby, even though she would not have been competent to make the contract according to the laws of her own state. In such a case the law of the place where the contract is made will be enforced wherever the suit is brought, even in the state of her domicile, subject only to the exception that, if the suit is brought in a jurisdiction whose law imposes upon married women a total incapacity to bind themselves by any contract whatever, then perhaps for reasons of public policy the contract will not be enforced. Minor's Confl. Laws, § 72; Young v. Hart, 101 Va. 480, 484, 44 S. E. 703; Armstrong v. Best, 112 N. C. 59, 17 S. E. 14, 25 L. R. A. 188, 34 Am. St. Rep. 473; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251; Robinson v. Queen, 87 Tenn. 445, 11 S. W. 38, 3 L. R. A. 214, 10 Am. St. Rep. 690; 57 L. R. A. 513, note; L. R. A. 1916A, 1055, note. It follows, therefore, beyond question, that if Mrs. Poole had merely stepped across the state line between Bristol, Tenn., and Bristol, Va., and signed the note in the latter state, she would be held liable thereon in a suit brought in any state where a married woman can contract, including now the state of Tennessee.

It will be found, too, from an examination of the authorities last above cited, to which many others of like tenor and effect might be added, that most of them concede that the actual bodily presence of the contracting party is not necessary to make the contract valid according to the laws of some other state than that of the domicile. If, for example, in the instant ease Mrs. Poolo had delivered the note to Perkins, by mailing or sending it to him in Virginia, then by the clear weight of authority she would have bound herself in accordance with the laws of the state of Virginia as folly as if she had actually crossed the state line and signed and delivered the note in that jurisdiction. This is unmistakably implied, even in the New York case of Union National Bank v. Chapman, supra, so strongly relied upon by the plaintiff in error.

We are brought, therefore, to this question: If Mrs. Poole had actually come into Virginia and signed the note, or had sent it here for delivery and acceptance, would there have been any substantial legal difference between the case as thus supposed and the case as it actually exists? We think not. It may be stated as settled law that, when parties make contracts which upon their face are to be discharged in a state other than that in which they are executed, they are presumed, in the absence of anything to the contrary, to have intended the law of the state of performance, the lex loci solutionis, to control, and thus, if intention can do so, to have voluntarily constituted the law of that state the law of the contract, or, as often otherwise expressed, the proper law or the governing law. So unanimous are the authorities on this proposition that those advocating the actual situs of the parties as the test of contractual capacity concede that if the intent in such cases is effective then the...