Bell v. Packard

Yirghn, J.

On or before March 12, 1873, the plaintiff, a resident of Skowhegan, holding an overdue note against the defendant’s husband, then a resident of Cambridge, Mass., wrote the note in suit and inclosed-it in a letter addressed and mailed to the latter in Cambridge, therein agreeing. to surrender the old note upon the delivery of the new one signed by him with a good surety. Accordingly the new note was signed by the defendant’s husband and herself and mailed to and received by the plaintiff at Skowhegan; who, thereupon, inclosed the old note to Packard at Cambridge.

The case also finds that, when the note was signed by the defendant, she was a married woman; and that, by the law of Massachusetts, she could not thus bind herself there.

In this state, however, a married woman may contract for any lawful purpose. B. S., c. 61, § 4.

Upon these facts the principal question for determination is, where was the note in suit made or to be paid. For although the personal incompetency of the defendant to contract as surety for her husband in Massachusetts, will, so far as all such contracts made there are concerned, follow her everywhere, still it will not be regarded as to such contracts made or to be performed here, where no such disqualification is acknowledged. Polydore v. Prince, Ware 402. Story Conft. of Laws, §§ 101, 102.

Our opinion is that the note was made and intended by the parties to be paid in Skowhegan. For although it was signed in Cambridge, it was delivered to the payee in Skowhegan ; and it was not a completed contract until delivered. This proposition needs no citation of authorities, still we cite Lawrence v. Bassett, 5 Allen, 140, as precisely in point.

But even if this were not conclusive, we should have no hesitation in deciding that the construction and legal effect of the note declared on must be determined by the laws of this state, on the ground that, no contract must be held as intended to be made in violation of the law, whenever by any reasonable construction it can be made consistent with the law, and which it was competent for the parties to adopt. Story Conf't. of laws, § 305 a.

The plaintiff’s letter called for a “ good surety ” to the note. By the execution and delivery of it, the makers must be presumed to have intended a bona fide and not a mala fide compliance with the proposition. But if the note was made in Massachusetts, and intended to be payable there, then it was illegal and void and an intended fraud bv the makers, since they must be presumed to have known the law of their ‘domicile ; whereas, if made or intended to be paid in this state, it would be legal and valid. It should therefore in the absence of any legal principle forbidding it, be considered as intended by the parties to have been made with reference to the law of the place where legal.

Judgment for the plaintiff for the amount of the note.

Appleton, O. J., DanfortS, Peters and Libbey, JJ., concurred.

. Note. — See, to same effect, Milliken v. Pratt, 7 Rep. 390, decided in Massachusetts since this opinion was announced. Rep.