Cooke v. Addicks

Opinion by

Pouter, J.,

This is an appeal from the order of the court below overruling a demurrer to the plaintiff’s statement of claim. The promissory note set forth in the statement was made in New Jersey, by a New Jersey corporation. It was indorsed by the defendant in New Jersey and was to be paid in that state. Nothing is lacking to make it a New Jersey contract. The defendant irregularly indorsed the note by placing his signature above that of the payee. In respect thereto the plaintiffs aver in their statement that “when the said defendant indorsed the note he did .... promise and agree to become and did become surety to the plaintiffs for the payment of the said note, and as evidence of and in pursuance of said agreement, did so indorse the note.” By evidence dehors the writing the plaintiffs thus propose to prove that the irregular indorsement was in fact agreed to be a contract of suretyship. This under the law of New Jersey, is clearly admissible, and, under the law of Pennsylvania, as clearly inadmissible. The contract was made in New Jersey. It is sought to be enforced in Pennsylvania. If lex loci contractus is applicable, the plaintiffs are entitled to judgment on the demurrer. If lex fori governs, the court below has erred. We are of opinion that the former applies and hold that the right to introduce the proof dehors the, instrument for the purpose of showing what in fact the contract was, is an essential part of the contract itself, and is not a mere incident to the remedy. It was a right given by the law of the place of the making of the contract, in contemplation of which the parties must be held to have contracted.

In Forepaugh v. D., L. & W. R. R., 128 Pa. 217, Tenant v. Tenant, 110 Pa. 478, and Sea Grove Association v. Stockton, 148 Pa. 146, the Supreme Court has enforced the obligation of contracts made in other states containing provisions quite as much at variance with the policy of the law of Pennsylvania as those in the present case. These cases, while not directly in point, substantially sustain the view of the law we take in this case. They are fortified by the case of Baxter National Bank v. Talbot, 154 Mass. 213, wherein a similar question was discussed at length and determined, — the ease of Forepaugh v. D., L. & W. R. R., supra, and many other authorities, being cited as authority.

We therefore hold that the plaintiffs are entitled to the enforcement of their contract as set forth in their statement of claim, and that the judgment on the demurrer must be sustained.

Judgment affirmed.