Thomas v. Clarkson , 125 Ga. 72 ( 1906 )

Atkinson, J.

1. The ruling announced in the first headnote rests on the inherent right of the State to prescribe the remedies to be employed in the enforcement of contracts through the agency of its courts. It is perfectly reasonable that the State of the forum should make its own limitations of time within which suits upon a given class of contracts may be instituted in its courts, or make the rules governing the admissibility or sufficiency of evidence, or prescribe the form of procedure to be employed. It is equally reasonable that when a contract is properly before the courts of a given forum, its validity, form, and effect should be determined in accordance with the laws of the place of the contract. The Code of Georgia of 1895 deals with these subjects on the theory just announced. By it nothing is referable to the laws of other States as to when or how suits on contracts of such States shall be commenced and prosecuted, or how they shall be proved in the courts of this State. Those things are left to fall under the operation of the uniform rule intended to apply to all cases alike, whether the suit be upon a contract of this State or of another State. The code is in harmony with the general law on the subject. In Lawson’s Bights, Bemedies, and Practice, Vol. 7, §3734, it is said: “The remedy upon a contract, both in substance and form, is regulated by the lex fori and not by the lex loci contractus.” And again, in §3738, it is said that “where the limitation merely bars the remedy, the lex fori governs, and the suit must.be brought within the time prescribed by the law of the place where the remedy is sought.” In this connection see also 22 Am. & Eng. Enc. L. 1385, and cit.; State of Tennessee v. Virgin, 36 Ga. 388; Montague v. Cummings, 119 Ga. 140. By §3765 of the Code of 1895, which is as follows: “Actions upon.bonds or other instruments under seal shall be brought within, twenty years after the right of action accrues, but no instrument shall be considered under seal unless so recited in ■ the body of the instrument,” the rule is fixed which governs the time within which this suit should have been instituted, and hence the statute of Alabama to the same effect (except as to the length of time) was irrelevant and inadmissible. In Obear v. First National Bank, 97 Ga. 587, this court expressly held that “Where a suit upon a written contract executed and to be performed in' another State is brought in a court of this State, the question whether or not the plaintiff’s right of action is barred, being one relating exclusively to the remedy, must be determined with reference to the limitation laws of Georgia.” Upon the argument of the case at bar, permission was granted to review the case last cited, which has been done, and, upon mature consideration, we are satisfied that the ruling there made is sound in principle and supported by precedent, and should- not be overruled.

2. To what is said in the second headnote it is necessary to add but little. By our Civil Code, § 8, we look to the laws of Alabama to determine the validity, form, and effect of the contract under consideration. By §2880 of the same code it is provided: “Every contract bears interest according to the law of the place of the contract at the time of thé contract, unless upon its face it is apparent that the intention of the parties referred the execution of the contract to another forum; in this case, the law of the.forum shall govern.” Under these two sections it is clearly referable to the laws of Alabama to determine whether there was usury in the transaction, and, if so, what would be the effect. The plea of usury is personal to the debtor, and, as a general rule, he is not obliged to claim its advantages, though he may do so whenever the facts-so authorize. In this instance the defendant elected to claim the benefits, and pleaded the Alabama statute on which he relied. The plea being in avoidance, the burden of proving all the facts essential to its maintenance was on the defendant. In the court below and in this court he based his defense on that statute. We have looked carefully into the record, and- the only difficulty w$ see is that the evidence discloses nothing to show that this statute was of force in Alabama in 1880, the date of the contract. A witness testified that the statute was of force at the time of the trial in 1905, and that it was taken from the Code of Alabama of 1896. There was no other evidence bearing directly or indirectly on the date of the statute. When the statute is once shown to exist, the continuance of its existence may be a matter of presumption until the contrary is proved (S. A. L. Ry. v. Phillips, 117 Ga. 98) ; but there is no rule, in reason or law, which would justify the inference that’the statute contained in the Code of Alabama of 1896 had been of force for fifteen years before the adoption of the code. The statute may have originated in 1896 by the adoption of the code, or it may have been by act of the legislature at an anterior date, more or less remote, but to say that it was of force at any given anterior date is a matter beyond the scope of presumption. The proof being deficient in this respect, the difficulty before alluded to seems insurmountable, and the defense that the action was barred must fail. Our code contemplates only “the law of the place of the contract at the time of the contract.”

3. “A defense or discharge which is good by the law of the place where the contract is made or to he performed is of equal validity wherever the question may be litigated.” 7 Lawson’s Nights, Rem. & Pr. §3735. The rule just expressed is well supported, and is in harmony with the rulings of this court and the provisions of our code. The defense set up by the defendant, that he, as security, was .discharged because of delay upon the part of the payee to sue the principal debtor after request to sue, will be governed by the laws of Alabapia. The weight of authority is that, in the absence of any such proof, it will be presumed that, on the point under consideration, the common law prevails in Alabama. In this connection see Woodruff v. Saul, 70 Ga. 271; Jones v. Rice, 92 Ga. 236; Pattillo v. Alexander, 96 Ga. 60; Selma etc. Ry. Co. v. Lacy, 43 Ga. 461; Charleston Ry. Co. v. Miller, 113 Ga. 15. Under the plea of the defendant there is no contention whatever that there was in existence any statute in Alabama authorizing the discharge upon the grounds taken. No such statute was pleaded, nor was any ■offered in evidence. It follows, therefore, under the weight of .authority as cited, that the question must be determined under the common law. It is well settled that in such a case as that presented, this court, in passing upon the common law, will not be controlled by the rulings of the courts of Alabama. See, in this connection, Pattillo v. Alexander, 96 Ga. 60; Krogg v. Atlanta R. Co., 77 Ga. 202. In Krogg’s case, just cited, it is said: “This court is not bound bythe interpretation of the common law made by the courts of Alabama, although the injury for which the suit is brought occurred in that State; but this court will decide what is the common law. As to the construction which the courts of that State place upon its own statutes or other local laws bearing upon the case, this court will follow their decision.” When we come to ■determine the point in question by the common law, as interpreted by this court, we find the question settled by the ruling in the case of Howard v. Brown, 3 Ga. 531, where Judge Warner says: “We think it is clearly established, both upon principle and authority, that before the enactment of onr statute, the holder of the note -could not have been compelled to have sued the makers at the request of the indorser; and if such a requisition had been made on the holder by the indorser, and the holder had neglected or refused to have instituted suit against the makers until they had removed beyond the jurisdiction of the State, or become insolvent, the indorser would not have been discharged, notwithstanding the holder ■could have instituted the suit against the makers by the exercise of ■ordinary diligence.” Under this ruling, the surety could not, at ■common law, be discharged by the failure of the payee to sue, and the plea setting up such defense was necessarily without merit, and the court did not err in striking the same.

4. To what is said in the fourth headnote it may be added that the makers of the notes under consideration, by express written contract, promised to pay a stated sum as principal, with interest on the same at eight per cent, per annum. The notes, therefore, conform exactly to the laws of Georgia upon the subject, and consequently are neither unreasonable nor violative of the policy of our law. In the case of the Union Savings Bank v. Dottenheim, 107 Ga. 609, Justice Cobb gives an interesting history of the law upon the subject of interest, and incidentally mentions a suggestion as to whether or not, at common law, it was lawful in England to take any interest whatever, and, if so, how much, for the use of money. But the determination of the case under consideration did not render a decision on the point necessary, and an investigation upon that point was not pursued to a conclusion. The question presented in this case is whether or not the common law of England as of force in the United States permits the taking of interest. In Webb on Usury, §5, it js said: “It is generally accepted that at ■common law there was no limit to fairly made charges for the use ■of money agreed upon by the parties to a loan.” In the case of Coleman v. Commins, 77 Cal. 548, it is said: “The illegality of usury is wholly the creature of legislation.” In Tyler on Usury, chap, v, p. 64, it is said: “Usury as at present understood is unknown to the common law, and depends wholly upon statutory enactment.” In the case of Fisher v. Bidwell, 27 Ct. 372, the court says: “There is no doubt that considering this question independently of our usury laws, ánd as one to be determined by the common law as administered in our courts, the lender would be entitled in such a case to recover not only the -principal sum lent, but the interest thereon according to the rate agreed on. . . By the common law there is no limit to the compensation for the use of money which may be agreed on between the parties to a loan.. . . It is only by statute that such contracts are invalidated on account of the amount of interest agreed to be paid.” In the case of Smith v. Muncie National Bank, 29 Ind. 161, it is said: “We presume that the common law remains unchanged by statute in Ohio, and that no limit is fixed as to the rate of interest on money.” In the case of White v. Frielander, 35 Ark. 52, it is said: “But the-notes were made payable in Tennessee. There was no proof of what her laws were in this regard. . . Independently of statutes, there is no principle of common law defining usury or punishing it by forfeitures.” In Ballard v. Bank, 61 Ga. 460, Justice Bleckley says: “By the act of February 19, 1873, all laws on the subject-of usury were repealed. It was after this repeal that the new note was given, and the deed was made to secure it. There was, therefore, no law in existence by virtue of which the deed could, become infected. Where there is no law, there can be no transgression.” Again in Reynolds v. Neal, 91 Ga. 610, it was held that promissory notes given when there was no statute on the-subject of usury are not usurious, no matter how much past interest or usury was embraced in them as a part of the principal. In Rooney v. Southern B. & L. Asso., 119 Ga. 944, Justice Lamar says:. “Nor would the result be different on the presumption that the-common law prevails in Alabama, for by it the rate of interest on money was not limited,” citing Smith v. Bank, 29 Ind. 158, and White v. Frielander, 35 Ark. 55. In the case of Houghton v. Page, 2 N. H. 42, it is said: “Any interest on money loaned was; at common law unlawful. But that principle of the common law is not applicable to our state of society; and by no part of the-common law in force here is any rate of interest unlawful, unless so-great as to become unconscionable. There can be in force here only those principles of the common law which have been expressly adopted, or which, being applicable to our state of society or-jurisprudence, and founded on intelligent reason, may be stated as. impliedly binding.” The weight of authority supports the proposition that the common law of force in America does not prohibit contracts for the payment of interest where the sum agreed upon. is not unconscionable. In recognition of this rule and in order to avoid uncertainty as to rates of interest, and to prevent exorbitant charges for the us^ of money, most of the States have by express statute passed laws against usury. So treating the common law as of force in Alabama, and in view of the .weight of authority on the right to collect interest, we can see no reason why the rate of interest promised in the contract between the parties at issue should not be paid.

5. The defendant, among other things, pleaded as follows: “That he is informed and he believes that some credit or credits should be placed upon said notes, and asks that plaintiff be made to make a full accounting for same not under oath.” No amounts nor dates of payment were alleged. The court sustained a demurrer to this' part of the plea, which challenged the same upon the ground “that no sufficient facts are pleaded to legally set up payment.” In this case it will be observed that the defendant does not in his plea allege either the time or place or amount of any payment to the credit of «which he thinks he may be entitled, nor say with certainty that anything was ever paid. The allegations are so vague and indefinite that the plea amounts to nothing, and is open to demurrer. See, in this connection, the cases of Wortham v. Sinclair, 98 Ga. 173; O’Neal v. Phillips, 83 Ga. 556; Baer v. Christian, 83 Ga. 322. The plea was properly stricken.

6, 7. The rulings announced in the 6th and 7th headnotes require no further elaboration.

8. Under the evidence the defendant did not question the execution of the note. It was shown by defendant’s witnesses that the principal debt was $147, and the rate of interest promised by the terms of the note was 8 per cent. The court directed a verdict for $147, principal, with interest on that sum at the rate of 8 per cent, per annum, and for attorney’s fees. As the debt was not usurious, there could be no forfeiture of interest. These are the only attacks made on the direction of a verdict, and as they are without merit, no error is shown.

Judgment a'fjirmed.

All the Justices concur.