Blodgett v. Durgin , 32 Vt. 361 ( 1859 )

Akdis, <J.

I. The law of the place of payment of a promissory note determines whether in presenting it for payment days of grace shall or shall not be computed. By the law of New Hampshire three days of grace are allowed, but in this State none are allowed.

In the case at bar the note was presented to the maker at Leb- ' anon, N. H., according to Vermont law, without an allowance for days of grace. The defendant claims that the law of New Hampshire should govern as to the presentment for payment, and therefore that he is not liable ,as indorser.

The note was not made payable at any particular place, but was payable generally. Such a note is governed by the law of the place where made, for the parties cannot be said to have reference to the law of any other place; Story on the Conflict of Laws, sec. 31L

The bill of exceptions states it was conceded that the note was made and delivered at St. Johnsbury, in Vermont. It would seem to be clear, therefore, that the law of Vermont must govern it.

It is objected by the defendant that there was evidence to show that the parties to it intended that it should be governed by the laws of New Hampshire, and that this evidence should have been submitted to the jury. This evidence was, as the defendant claims, first, that the maker and payee resided in New Hampr shire when the note was made; and, secondly, that the note was dated at Lebanon, N. II. As the place of payment determines whether days of grace should be allowed or not, the inquiry arises, do the facts here shown tend to prove that the note was to be payable in New Hampshire? We think not. The place of payment is a material part of the contract. If the note is payable at a particular place, parol evidence is not admissible to show it payable elsewhere, or payable generally. So if payable generally it can not be shown by parol that it was intended to be payable at any particular place. By making it payable generally, the parties must be presumed to have intended that the law of the place where it was made should govern; otherwise they would have made it payable elsewhere.

It is urged, however, that as it is dated at Lebanon, New Hampshire, and that is prima facie the place where it. was made, this shows that the parties intended to have it payable in New Hampshire,

The place of date is not a part of the contract. It is not mater rial to the validity of the note, and is always open to be explained. It does not make that the place of payment; Story on Promissory Notes 49; 2 Watts & Serg. 140; 3 McCord 394; Chitty on Bills 146.

In this case it is conceded that the place of making the note is in Vermont, and any presumption that might have b,een drawn from the date as to a different place of making the note, is con-i ceded to be wrong. The place of date is said to be remote, and slight proof that the maker resides there; 3 Comst. 274 ; 3 Denio 145 ; 24 Wend. 358.

The note may have been so dated to indicate the residence of the maker.

If the plaintiff, not knowing that the note was made in Ver-, mont, had been misled by the date to believe it made in New I-Iampsliir'e, and had acted accordingly in presenting it for pay-, ment, the question would have been very different from the one now before us. But having ascertained the true place of making and acted upon it, we think the original parties to the note can-* not hold him concluded by what at most is but a prima facie pre^ sumption. They could have concluded all subsequent holders by making the note payable in New Hampshire, but this they did not do. Neither can the residence of the maker and payee, if' both are shown to reside in New Hampshire, control the note so as to make it subject to New Hampshire laws. No distinction is made between foreigners and citizens as to the operation of the lex loci contractus. It is the place where the contract is made that governs, not the residence of the contracting parties.

This is the doctrine as laid down by Judge Story in his Conflict of Laws sec. 279. And the same principle is directly recognized in Bryant v. Edson, 8 Vt. 325 ; and in Bank of Orange Co. v. Colby, 12 N. H. 520. But we think the evidence did not tend to show that the maker resided in New Hampshire when he made the note. It is too indefinite op that point to fairly raise the question.

II. We do not think the fact that the indorsement was made at Bradford, when it appears tfiat the indorser had no residence there, and was there only occasionally as he traveled about the country peddling, made it incumbent on the plaintiff to send a notice to the defendant at that place.

Under the charge of the court, the jury must have found that the plaintiff did not know, and by diligent inquiry could not ascertain where the defendant resided, or where notice would be likely to reach him, until he met him at Royalton and notified him. By all the authorities this was sufficient.

III. The jury must have found that the defendant was informed at Royalton that demand had been made of Wood, (and by demand we must understand legal demand) and that ho had refused to pay; and that the defendant then knew no notice had been given him or his agent; and that under these circumstances he promised absolutely to pay the note. This was a waiver of the want of previous notice and bound the defendant, for it showed knowledge of the facts which would in law discharge hup from his indorsement, and that is all that is required ; Tibbetts v. Dowd, 23 Wend, 379 ; 1 Aik, 39, Nash v. Harrington; 3 Kent Com. 113; Edw. on Prom. Notes 650-1; Chitty on Bills 501, and numerous cases cited in notes; Story on Prom. Notes sec. 362.

It is said there was no evidence tending to show that he knew no notice had been given. But when we consider the lapse of time between the time of payment and the meetipg at Royalton, the residence of the defendant, his having an agent at his residence who attended to his correspondence, we think these circumr stances, taken in connection with the promise made at Royalton, justified the court in putting the case to the jury upon this point as it was presented in the charge.

Judgment affirmed.