Templeton v. Sharp

• Decision Date: 24 November 1888
• Citation: 9 S.W. 696
• Parties: TEMPLETON v. SHARP et al.
• Court: Kentucky Court of Appeals

9 S.W. 696

TEMPLETON v. SHARP et al.

Court of Appeals of Kentucky.

November 24, 1888

Appeal from circuit court, Christian county; JOHN R. GRACE, Judge.

Action by Caroline Sharp and others, widow and children of Solomon A. Sharp, deceased, against William S. Templeton, to recover on a promissory note executed by defendant to deceased. From a judgment for plaintiffs, both parties appeal. For former opinion, see ante, 507.

Landes & Clark, for appellants on cross-appeal. W. S. Templeton, pro se.

HOLT J.

It now appears that a cross-appeal had in fact been granted in this case, and entered upon the record-book; but, by the omission of the clerk to make a note of it upon the transcript of the record, it was overlooked when the original appeal was determined. The note sued upon was executed in California. There was no agreement that it was to be paid, or the contract performed elsewhere. The rate of interest allowable upon it is therefore governed by the lex loci contractus. To this end, however, the law of that state relative to interest must be properly pleaded, and then, if put in issue, must be proven. The law of another state is unknown to the courts of this state. It must be pleaded and proven like any other fact.

This is the averment of the petition: "The defendant, William S Templeton, by his promissory note bearing date and executed on the 31st day of August, 1871, promised and agreed to pay to the said Soloman A. Sharp or order the sum of $1,920 three years after date of said note, with interest thereon at the rate of ten per centum per annum from the date thereof until paid; that at the time said note was executed, to-wit the 31st day of August, 1871, the said defendant resided in the state of California, and the legal rate of interest at that time in said state, according to the law of said state was ten per centum per annum on all such obligations, and that the contract to pay interest on said sum at the rate of ten per centum per annum, as stipulated in said note, was lawful in said state, and enforceable under the laws thereof." This, so far as the law of California is concerned, is but the statement of a legal conclusion. It merely gives the opinion of the pleader. He says the then legal rate, according to the law of that state upon such obligations, was ten per cent., and that the agreement in the note to pay interest at that rate was lawful and enforceable there. There is no...