Tarbox v. Childs

• Decision Date: 29 February 1896
• Citation: 165 Mass. 408,43 N.E. 124
• Parties: TARBOX v. CHILDS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 408

43 N.E. 124

TARBOX v. CHILDS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1896

COUNSEL

Joseph Walker, for plaintiff.

H.J. Boardman and Percy G. Bolster, for defendants.

OPINION

ALLEN, J.

The defendants contend that the notes given to the plaintiff were Massachusetts contracts, and that they should be interpreted and have effect according to the law of Massachusetts. That would be so if a question arose in an action upon the notes or either of them. Bank v. Wood, 142 Mass. 563, 8 N.E. 753. But the present action is brought on the original contract and not on either of the notes. The plaintiff seeks to recover what the defendants agreed to pay him as the price of the horses sold. The defendants' promise was made in New York, and was to be performed there. They were bound to make payment in that state, and the question is whether they have done so. They paid a part in cash, and for the residue they sent, by mail, to the plaintiff, in New York, their note, made in Massachusetts, and payable here. By the law of Massachusetts, a negotiable note taken for an antecedent debt is deemed to be a payment, unless there is something to show a contrary intention. The rule in New York is the other way. The plaintiff in New York was not affected by the rule which prevails here. The defendants' promise to pay him in that state remained unperformed and undischarged according to the law of that state. It makes no difference that successive notes were given. The plaintiff was to be paid there, and he has not yet been paid according to the law of New York, and is entitled to recover. Vancleef v. Therasson, 3 Pick. 12; Rosseau v. Cull, 14 Vt. 83; Bank v. Webb, 39 N.Y. 325; Olcott v. Rathbone, 5 Wend. 490; Story, Confl.Laws, § 332. Judgment for the plaintiff.