Studebaker Brothers Company v. Mau

Decision Date28 August 1905
Citation14 Wyo. 68,82 P. 2
PartiesSTUDEBAKER BROTHERS COMPANY v. MAU
CourtWyoming Supreme Court

ON petition for rehearing.

For former opinion, see 13 Wyo. 358 (80 P. 151).

Rehearing denied.

S. T Corn and J. H. Ryckman, for defendant in error (in support of petition for rehearing).

The cases cited by the learned author of Mechem on Sales, in support of the proposition that conditional sale contracts should be determined by the laws of the state or country where they are made, and if valid there will be enforced in any other state or country, although not filed or recorded in the latter jurisdiction, are not distinguished in that work several important points we think are overlooked in the citation of such authorities. Most of them are to be distinguished from the case at bar and the points here involved. (Counsel then proceeded to review the various authorities referred to, to demonstrate their inapplicability to the case at bar.)

The rule is well settled that the laws of a foreign country or state will not be enforced where it will contravene the settled policy of the forum, or be prejudicial to the interests of its citizens, or where the contract is immoral or injurious, or the enforcement will work a detriment to a single citizen of the state of the forum. (Freeman's App., 68 Conn. 533; Thurston v. Rosenfield, 42 Mo. 474; Bryan v. Brisbin, 26 Mo. 423; Emory v. Greenough, 3 Dall., 370; Andrews v. Heriott, 4 Cow., 510; Zipcuy v. Thompson, 1 Gray, 243; Gardner v. Lewis, 7 Gill., 395; Story's Conflict L., Secs. 28, 571, 572; Willetts v. Waite, 25 N.Y. 577; Ducat v. Chicago, 95 A. D., 529; Smith v. McAtee, 27 Md. 420; Bouvier L. Dict. Comity; Derringer v. Derringer, 5 Houston, 416; Gillman v. Kitchan, 84 Wis. 60; Catlin v. Wilcox, 123 Ind. 477; Runk v. St. John, 29 Barb., 585; Mineral Point Co. v. Barron, 83 Ill. 365; Woodward v. Brooks, 128 Ill. 222; Davis v. Jocquin, 5 Har. and J., 109; Wilson v. Carson, 12 Md. 75; Midland Co. v. Broat, 50 Minn. 562; Noles v. Vacher, 57 N.J.L. 490; Varnum v. Camp, 13 N.J.L. 362; Sandhein v. Gilbert, 117 Ind. 71.)

Comity is voluntary and not obligatory and cannot supersede discretion. (Gooch v. Fausette, 39 L. R. A., 836.) A contract valid where made is valid everywhere, but it is not necessarily enforcible everywhere; it may be contrary to the law of the forum, or may be inconvenient, or prejudicial to the citizens thereof, in which event it will not be enforced. (Emery v. Burbank, 28 L. R. A., 57; Hoyt v. Thompson, 19 N.Y. 207.) In case of doubt the lex fori should be preferred. (22 Ency. L., 1320.) The vendor in the case at bar could have provided for the contingency of the property being taken out of the state, so that such removal would have been tortious, and upon that ground could have prevented the vendee from conveying any title to another. But one case exactly in point with the case at bar seems to have been referred to in the latest discussion of this question, viz, in Wharton on the Conflict of Laws. (Sanger v. Piano Co., 21 Tex. Civ. App., 523.) That case is against the contention of the appellant in the case at bar and was decided upon the principle that comity will not be exercised when in conflict with or in derogation of the law or policy of the forum, and when detrimental, injurious or inconvenient to any of its citizens. To sustain the contention of the plaintiff in error in the case at bar would violate the principle that where one of two innocent parties must suffer from the conduct of a third, the loss should be borne by the one who put it in the power of such third person to commit the injury. (Ex parte Dickinson, 13 Am. St. 752; Pierce v. O'Brien, 129 Mass. 314; Payne v. Lester, 44 Conn. 196; Moore v. Church, 70 Iowa 208.) And it would create great uncertainty as to titles to personal property. (Schmaltz v. Mfg. Co., 204 Pa. St. 1.)

VAN ORSDEL, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

VAN ORSDEL, JUSTICE.

This case was decided at the last term of this court (80 P. 151). A petition for rehearing was filed within time and the cause was reargued and briefs submitted in support of the petition. For a statement of the case reference is made to the original opinion. The grounds assigned in the petition for rehearing, upon which it is claimed the court erred in its former decision, briefly summarized, are as follows: That the doctrine of comity does not apply in this case, for the reason that the contract in question, being a conditional bill of sale and not recorded in Utah, the lex fori and not the lex loci contractus governs; that the law of Utah is in conflict with a positive law of this state, and the decision therefore unjustly discriminates against the citizens of Wyoming in favor of the citizens of a foreign jurisdiction, in that a positive statute of this state is rendered inoperative, as against a mere judicial construction of the State of Utah, which construction is in conflict with the established policy of this state which is intended to protect bona fide purchasers of chattels against secret liens and pocket encumbrances; and that the decision deprives the defendant of his property without due process of law, and contravenes the provisions of both the state and federal constitutions.

It is well to understand at the outset that it is not the contract between Mahan, the original vendee, and the defendant, Mau, that we are considering. This action stands or falls upon the right of plaintiff to enforce its contract in this state. If it fails, there is no question as to the right of the defendant to the property. If it succeeds, the contract between the original vendee and the defendant becomes a mere nullity. It is conceded that the contract of conditional sale, upon which plaintiff relies, is valid under the law as established by judicial construction in the State of Utah. In determining the validity of a contract made and to be performed in a foreign jurisdiction, we fail to discern any distinction between a contract depending for its validity upon a statutory enactment, and one the validity of which depends upon a judicial construction of the courts of such jurisdiction. Both have equal force and effect at home, and the construction there given determines their standing abroad. Hence, for the purposes of this case, it is immaterial whether the custom prevailing in Utah, that does not require conditional bills of sale to be recorded, in order to be valid against subsequent purchasers, in good faith, is a statutory enactment or the result of judicial construction. The requirement of registration and the manner of the making and solemnization of a contract in another state or country, relative to personal property located there at the time of the making of such contract, is not a question into which we can inquire, further than to determine whether or not under the laws of the particular jurisdiction the contract is valid. The contract in question, being valid where the property was located when the contract was made, where the parties all resided at the time of its execution, and where it was to be performed, it is immaterial so far as this inquiry is concerned whether the law of Utah requires such contract to be registered or not. In other words, if our registration law requires foreign conditional bills of sale to be filed in this state, when the property is removed here from such foreign jurisdiction, the condition will not be different whether the state or country where such bill of sale was executed and from which the property was removed requires the instrument to be recorded or not. While it is true that a contract valid where made is valid everywhere, it does not necessarily follow that it is enforceable everywhere. The question of its enforcement depends upon the law of the forum where the action for its enforcement is pending, and does not depend upon the particular method adopted to insure its validity in the jurisdiction where made.

Section 2837, Revised Statutes, among other things provides: "No sale, contract or lease wherein the transfer or title of ownership of personal property is made to depend upon any condition, shall be valid against any purchaser or judgment creditor of the vendee or lessee in possession, without notice, unless the same be in writing, signed by the vendee or lessee, and the original or a copy thereof filed in the office of the County Clerk of the county wherein the property is." Plaintiff failed to record its contract of conditional sale, under this statute, after the property in question was brought into this state. It is contended by counsel for defendant that such failure is fatal, and that plaintiff cannot now recover the property, after it has passed into the hands of the defendant, an innocent purchaser. It is evident that if plaintiff can recover its property it must be through the intervention of the doctrine of comity. Comity will not intervene to enforce the laws of a foreign state or country, if such enforcement would contravene the well settled policy of the forum, or be prejudicial to the interests of its citizens, or when it comes in conflict with a positive law. Comity will only be adopted by courts of justice in the silence of a particular rule affirming, denying or restraining the operation of foreign laws. While comity is voluntary and not obligatory, and cannot supersede discretion, yet it rests upon a much broader principle than that of mere accommodation or courtesy. It may be said almost to be a part of the international law of civilized nations. Upon it rests to a large extent the right of property. The security of this right can only be guaranteed through the sacredness of the contractual relation. The right of a citizen to enforce his contract, valid where made, and to...

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