Personal Finance Co. of Columbus, Ga. v. Gibson , 26 Ala. App. 18 ( 1933 )

It is with sincere regret that the writer, with whom RICE, J., concurs, cannot agree to the conclusions reached by BRICKEN, P. J., in the very persuasive opinion prepared by him in this case.

The statement of the case is fully and fairly stated by BRICKEN, P. J., in the opinion prepared by him. As to the statement. of the case therein, we agree, but the conclusions of law therein stated are not in accord with the law as we find it.

It being admitted that the contract for the payment of interest was a binding contract between the parties under the laws of Georgia where the contract was made and to be performed, the same remained a binding contract everywhere and could be enforced as such in the courts of this state. There are some few decisions holding to a contrary view, but in this state the rule is settled, so far as this court is concerned, that: "If the contract is not usurious where made and to be performed, it will be enforced by the courts of this state, notwithstanding it would have offended the laws of this state against usury, had it been made here." The foregoing is quoted from the opinion in United States Savings Loan Company v. Beckley, 137 Ala. 119, at page 122,33 So. 934, 62 L.R.A. 33, 97 Am. St. Rep. 19. This decision is based upon the texts in Story on Conflict of Law (8th Ed.) p. 397. This case has never to our knowledge been qualified or overruled; on the contrary, its correctness is recognized in Alger-Sullivan Lbr. Co. v. U. T. Co., 218 Ala. 448-453,118 So. 760.

In Watkins Co. v. Hill, 214 Ala. 507, 108 So. 244, the same rule is stated with the citation of many authorities.

We are familiar with the decision in Western Union Tel. Co. v. Hill, 163 Ala. 18, 50 So. 248, 253,23 L.R.A. (N.S.) 648, 19 Ann. Cas. 1058, in which Mayfield, J., speaking for the court, said: "Any provision found in the law of another state authorizing the making of a contract which is obnoxious to the laws of Alabama, as to such obnoxious provisions the contract will not be enforced in Alabama." In that case the breach occurred in Alabama and to that extent, at least, may be said to differ from the case at bar.

The general rule, as stated, is that a contract good in a foreign state will be enforced in this state, unless contrary to the public policy of this state. 13 Corpus Juris, 255. And it is contended, and the opinion of the Presiding Judge persuasively urges, that the contract in the instant case is contrary to the public policy of this state, but the authorities are to the contrary. "Contracts valid where made, do not offend the public policy of a forum, even though they provide for a rate of interest which would be usurious with penalizing consequences, even to the extent of forfeiture of principle and interest as to such a contract if made in the law of the forum." 5 R.C.L. p. 981 (62) and note 13.

There is some diversity of opinion as to contracts made in one state to be wholly or partially performed in another, as was the case in W. U. Tel. Co. v. Hill, 163 Ala. 19,50 So. 248, 23 L.R.A. (N.S.) 648. 19 Ann. Cas. 1058; but where the locus concractus and the locus solutianis is the same, if the contract is legal where made it will be enforced by the courts of this state; notwithstanding it would have offended the laws against usury in this state if it had been made here. U.S. Savings Loan Co. v. Beckley, supra. Finally, the Legislature has the right and power to declare the public policy of this state regarding comity between states and to forever put at rest questions similar to the one raised here. In 1907 it enacted a statute which has become section 5681 of the Code of 1923 as follows: "Whenever, either by common law or the statutes of another state, a cause of action, either upon contract, or in tort, has arisen in such other state against any person or corporation, such cause of action shall be enforcible in the courts of this state, in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state." This statute has been recognized and cited by this court in Mobley, Supt. of Banks, etc., v. Smith, 24 Ala. App. 553,138 So. 551, and by our Supreme Court in Dollahite-Levy Co. v. Overton, 223 Ala. 12, 133 So. 903.

We see no escape from the conclusion that the trial court erred in the judgment rendered by it, and for this error the judgment is reversed and the cause is remanded.

Reversed and remanded.