Colston v. Pemberton , 45 N.Y.S. 1034 ( 1897 )

Conlan, J.

This is an appeal from a judgment entered by direction of the court, and from an order denying a motion for, a new trial. .'

The action was commenced by the .plaintiff, as assignee for value of one Robert D. Whitice, to enforce a certain contract of guaranty on a note of the Kensington Land Company, a Tennessee corporation. The guaranty sued upon was executed by the defendant herein in the name of E. R. Pemberton & Company, but the note and guaranty thereon were executed at the city of Chattanooga, in the State of Tennessee, and both said Whitice and said defendant were at the time of the execution thereof residents of and had their, places of business in said city and State, and it was there' that the contract was to be performed.

The lexi loci contractus determines the validity of the contract and the rights of the parties thereto.

The testimony as to the Laws of the State of Tennessee is to the effect that a guaranty in cases of the character in suit is supported by the original consideration between the original parties, where the two instruments are executed concurrently and the guaranty refers to the note guaranteed.

The note in question was dated, at Chattanooga, ■ Eebruary 19, 1891, and expressed a consideration on its face.

The defendant’s guaranty is also dated February 19, 1891, at Chattanooga, and referred to two notes (one being the note in suit) as having been made on that date. »

This brings the case squarely within the laws of the State of Tennessee.

As appears by the undisputed evidence, the two instruments were executed at the same place on the same day and' refer to each other, and for the purpose of the action must be held.to have been executed concurrently.

This disposes of the plaintiff’s right ti> recover, and as the record discloses no error committed ■ on the trial, the judgment must be affirmed.

O’Dwyer and Scotchman, JJ., concur.

Judgment affirmed, with costs.