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See also, in this connection, Smith v. Val- , bill in case he was unsuccessful at law (see ence, 1 Rep. in Ch. 169. The case of Bos. Moore v. Sanford, 151 Mass. 285, 7 L. R. A. ton & M. R. Co. v. Graham, 179 Mass. 62, 151, 24 N. E. 323), or must in such a case 60 N. E. 405, stands on its special circum- make his election in the first instance, it stances. Whether the plaintiff could have is not necessary to consider. attached the forfeiture at law and filed this Decree affirmed.

INDIANA SUPREME COURT.

Lida M. GARRIGUE, Impleaded, etc., Appt., | of a married woman, who signed them as

surety. Affirmed.

The facts are stated in the opinion. . Jacob KELLER.

Mr. L. W. Welker, for appellant: (...... Ind... .)

It matters not where the domicil of the 1. That a note for the payment of which maker of the note is if the parties fix a place a married woman becomes surety

is for the performance of the contract, for in made payable in a state where such contract

such case the parties will be presumed to is invalid will not, although the suit is brought in that state, defeat her liability if have contracted with reference to the law of the contract was valid at her domicil, where the place. it was executed.

llunt v. Standart, 15 Ind. 36, 77 Am. Dec. 2. The execution of a renewal note in 79; Butler v. Myer, 17 Ind. 77; Browning

consideration of the surrender of one v. Merritt, 61 Ind. 425; Midland Steel Co. v. upon which the signer was liable as

Citizens' Nat. Bank (Ind. App.) 72 N. E. surety will bind him as principal, as between himself and the payee.

290; Fordyce v. Nelson, 91 Ind. 447; Gray

v. State, 72 Ind. 567; Kopellce v. Kopelke, 3. The admission of evidence of a conversation between the maker and payee of

112 Ind. 435, 13 N. E. 695; Brown v. Jones, a note as to the law by which it shall be 125 Ind. 375, 21 Am. St. Rep. 227, 25 N. E. governed, which took place in the absence o 452; Pritchard v. Norton, 106 U. S. 124, 27 the surety, is not reversible error upon coni L. ed. 104, 1 Sup. Ct. Rep. 102; Coghlan v. plaint of the surety, where the conversation South Carolina R. Co. 142 U. S. 101, 35 L. merely corroborated the effect of the contract

ed. 951, 12 Sup. Ct. Rep. 150; Buchanan v. itself, and there was no evidence to the con. trary.

Drorers' Nat. Bank, 5 C. C. A. 83, 6 U. S. 4. Failure to set out instructions to App. 566, 55 Fed. 223; Bascom v. Zediker, which objection is made, as required by 48 Neb. 380, 67 N. W. 148; Baum v. Birchrule of court will waive the objection.

all, 150 Pa. 164, 30 Am. St. Rep. 797, 24 Atl. 3. Delivery of notes into the mail, to be 620; Bell v. Packard, 69 Me. 105, 31 Am. forwarded to another state in

accord- Rep. 251; Milliken v. Pratt, 125 Mass. 374, ance with the understanding between maker 28 Am. Rep. 241; Evans v. Beaver, 50 Ohio and payee, completes the delivery so as to make the contract one to be governed by the St. 190, 40 Am. St. Rep. 666, 33 N. E. 643 ; laws of the state where the postoffice is lo. Chapman v. Robertson, 6 Paige, 627, 31 Am. cated.

Dec. 264; 22 Am. & Eng. Enc. Law, 2d ed. 6. The enforcement of a contract of

p. 1325, 1f 4, 5, 6; 1 Beach, Modern Law of suretyship ngainst a married woman, Contracts, $$ 592, 595; 1 Dan. Neg. Inst. which is valid in the state where made, is not impossible in another state,

3d ed. $ 895; Story, Confi. L. 8th ed. § 301a.

violative of its public policy, merely because its stat.

The court erred in refusing to enter judg. utes forbid her to bind herself by such a con. ment in favor of appellant, Lida M. Gartract.

rigue. (May 23, 1905.)

Frankel v. Michigan Mut. L. Ins. Co. 158

Ind. 304, 62 N. E. 703; Geddes v. BlackA

from a judgment of the Circuit Court R. . v. Stansberry, 132 Ind. 533, 32 N. E. for Noble County in favor of plaintiff in an 218; Shirk v. Wabash R. Co. 14 Ind. App. action brought to enforce payment of cer

127, 42 N. E. 656; Todd v. Fenton, 66 Ind. tain promissory notes out of the property 25; Manning v. Gasharie, 27 Ind. 399; Louis

NOTE.--For conflict of laws as to capacity rille, N. A. & C. R. Co. v. Pedigo, 108 Ind. of married women to contract, see also, in this 481, S N. E. 627; Toledo & W. R. Co. v. series, Union Nat. Bank v. Chapman, 57 L. R. Goddard, 25 Ind. 185; Pittsburgh, C. & St. A. 513, and note.

L. R. Co. v. Spencer, 98 Ind. 186; Walkup v. For conflict of laws as to negotiable paper, see also Spies v. National City Bank, 61 L. R: May, 9 Ind. App. 409, 36 N. E. 917; Cin. A. 193, and note, and Cherry v. Sprague, 67

cinnati I. St. L. & C. R. Co. v. Grames, 8 L. R. A. 33.

Ind. App. 112, 34 N. E. 613, 37 N. E. 421;

as

National Exch. Bank v. Berry, 21 Ind. App. I to interrogatories and for a new trial, and 261, 52 N. E. 104; Dixon v. Duke, 85 Ind. judgment was thereupon rendered in favor 434; Indianapolis v. Kingsbury, 101 Ind. of appellee for $4,300 and for the sale of 200, 51 Am. Rep. 749.

the attached real estate. Admissions of the maker of a note, who The assignment of errors requires us to is not making a defense, are not competent review the decision of the court in overrulagainst a surety if not made in her hearing. ing the demurrer to the first and second

Pierce v. Goldsberry, 35 Ind. 317; Leach paragraphs of reply, and in overruling the v. Dickerson, 14 Ind. App. 375, 42 N. E. motion for judgment on the special findings 1031; Ricketts v. Harvey, 78 Ind. 152; of the jury, and in overruling the motion for Smith v. Wagaman, 58 Iowa, 11, 11 N. W. a new trial. The first question for decision 713; Baker v. Briggs, 8 Pick. 122, 19 Am. is presented by appellant's demurrer to the Dec. 311; Rogers v. Anderson, 40 Mich. 290; first paragraph of reply, and is this: Is a D. M. Osborne & Co. v. Bell, 62 Mich. 214, note executed in Illinois, by a married 28 N. W. 841.

woman, as surety, while domiciled in that The notes in controversy were executed in state, but made payable at a bank in this this state, and made payable at a bank in state, valid and enforceable in Indiana ? this state; consequently they are governed The statute of Illinois in regard to contracts by the laws of this state.

of married women, in force at the time of The parties fixing the place of perform the execution of the notes in suit and at all ance of the contract as the Noble County other times covered by this controversy, is as Bank, Kendallville, Indiana, the contract follows: "Contracts may be made and liafrom that fact alone must be governed by the bilities incurred by a wife, and the same laws of this state.

enforced against her, to the same extent and Story, Confl. L. & 241.

in the same manner, as if she were unmarMessrs. R. P. Barr and Chapin & ried; but, except with the consent of her Denny for appellee.

husband, she may not enter into or carry on

any partnership business unless her husband Montgomery, J., delivered the opinion has bandoned or deserted her, or is idiotic of the court:

or insane, or confined in the penitentiary.” This action was brought upon three prom- Hurd's Rev. Stat. 1903, chap. 68, $ 6. The issory notes executed by appellants to the Indiana statute applicable to the matter Noble County Bank, and payable at said under consideration is as follows: "A marbank, and by it assigned before maturity to ried woman shall not enter into any conappellee. Appellee filed with his complaint tract of suretyship, whether as indorser, an affidavit and undertaking, and obtained a guarantor, or in any other manner; and writ of attachment upon which certain real such contract, as to her, shall be void." estate owned by appellant, Lida M. Gar- Burns's Anno. Stat. 1901, § 6964. The derigue, was attached. Appellant, Lida M. cisions of the courts of different states upon Garrigue, answered the complaint, first, by the question before us are in irreconcilable general denial, and, second, by alleging her conflict and in hopeless confusion. It has suretyship and coverture. Appellee replied been held by some courts that when conin three paragraphs to the second paragraph Nicting laws affect the enforcement of a of answer; First. That at the time of the contract like the one in suit the law of the execution of said notes said appellant was domicil of the maker governs, by others the and that she still is, a resident of the state law of the place of execution, by others the of Illinois; that said notes were executed law of the place of performance, and by in said state; and that under the laws of others the law of the place of enforcenient. said state, set out in full, she had the capac. We cannot reconcile the cases, or harmonize ity to execute said notes as surety. Sec. the divergent views contained in the books, ond. The same averments as in the first, but must be content to extract therefrom and further, that said notes were given in re such principles as we believe to be sound, and newal of a note for the principle sum of $3,- declare the law as it is and ought to be in 750, executed by both of the appellants on this state. The law applicable to promisthe 30th day of July, 1900, in the city of sory notes executed in one state and payable Chicago, and payable in said city in one year in another, having conflicting laws, may be after date, for money loaned and paid to summed up as follows: (1) All matters Rudolph H. Garrigue in the city of Chicago. bearing upon the execution, the interpretaThird. General denial. The cause was tried tion, and validity of the note including the by a jury, and a general verdict returned for capacity of the parties to contract, are to appellee, with answers to interrogatories. be determined by the law of the place Appellant unsuccessfully moved the court where the contract is made. (2) All for judgment in her favor upon the answers matters connected with the payment, includ

ing presentation, notice, demand, protest, , incidental matter. The makers are not disand damages for nonpayment, are to be charged from their principal obligation by regulated by the law of the place where by an unaccepted tender of the amount owing its terins the uote is to be paid. (3) All at the time and place designated for pay. matters respecting the remedy to be pur- ment, but by such tender are released only sued, including the bringing of suits, service from liability for damages, which otherwise of process, and admissibility of evidence, de- would accrue from nonpayment. Makers pend upon the law of the place where the of promissory notes cannot insist that they action is brought. Scudder v. Union Nat. will pay at the place designated or not at Bank, 91 U. S. 406, 23 L. ed. 245; Bowles v. all, but may be sued upon their obligation Field, 78 Fed. 742; Union Nat. Bank v. and payment of the principal amount enChapman, 169 N. Y. 538, 57 L. R. A. 513, 88 forced at any place where jurisdiction over Am. St. Rep. 614, 62 N. E. 672; Ruhe v. their persons or property may be acquired. Buck, 124 Mo. 178, 25 L. R. A. 178, 46 Am. In the case of Union Nat. Bank v. ChapSt. Rep. 439, 27 S. W. 412; Mendenhall v. man, 169 N. Y. 538, 57 L. R. A. 513, 88 Am. Gately, 18 Ind. 149. A contract must be St. Rep. 614, 62 N. E. 672, a married woman construed and its validity determined under executed a note as surety, in Alabama, paythe laws of the state where it is executed, able in Illinois, and the court said: “It unless it can be fairly said that the parties seems clear that the capacity of Mrs. Chapat the time of its execution clearly mani. man to contract must be determined by the fested an intention that it should be gove law of the state where the contract was exeerned by the laws of another state. Grand cuted, unless it can fairly be said that she, v. Livingston, 4 App. Div. 589, 38 N. Y. at the time of the execution of the instruSupp. 490; F. B. Hauck Clothing Co. v. ment, clearly understood and intended that Sharpe, 83 Mo. App. 385; Wharton, Confi. it should be governed by the laws of another L. § 401. If a contract is valid in the state state. Such an intention or understanding where it is executed, it is valid everywhere. is not manifest in this case." In the case of Niliiken v. Pratt, 125 Mass. 374, 28 Am. F. B. Hauck Clothing Co. v. Sharpe, 83 Mo. Rep. 241; Wright v. Remington, 41 N. J. L. App. 385, the defendant was a married 48, 32 Am. Rep. 180; Taylor v. Sharp, 108 woman, and resided in Missouri, where she N. C. 377, 13 S. E. 138; Holmes v. Reynolds. executed a note for the accommodation of 55 Vt. 39; Miller v. Wilson, 146 Ill. 523, her son, and made it payable at a bank in 37 Am. St. Rep. 186, 34 N. E. 11ll; Baer Indiana, and the court said: “The law of Bros. v. Terry, 105 La. 479, 29 So. 886; the place of performance does not in any First Nat. Bank v. Mitchell, 34 C. C. A. 542, way affect the capacity of a married woman 92 Fed. 565. Applying these general prin to contract in a state which authorized her ciples to the case in hand, it is our conclu- to make the contract, unless made with refsion that the validity of the notes in suit, erence to real estate situated in the state of as to the appellant, Lida M. Garrigue, must performance, or it is apparent from the be determined by the laws of Illinois, where terms of the contract that the parties init is alleged they were executed, notavith. tended to incorporate the laws of the state standing the fact that the place of payment of performance in the contract.” From the was in Indiana. If. the notes were executed case of Wm. Glenny Glass Co. v. Taylor, 99 in Illinois, as averred, and were valid there, Ky. 24, 34 S. W. 711, we quote the following the designation of a place of payment in this paragraph: “The mere fact that the note state will not be accepted as conclusive evi- was made payable in New York, and received dence, or as clearly manifesting an intention by the payee in that city, under the circumby the parties, that their validity should be stances of this case is not sufficient evidence governed by the laws of Indiana, when such of the fact that it was intended the law of au interpretation would render them wholly that state should govern, or its validity to void as to one of the makers. This conclu- be tested by the statute in regard to usury. sion is supported by the rule of sanity and We will not assume, nor does the evidence honesty "that no contract must be held as authorize such a conclusion, that the brother intended to be made in violation of the law, living in Washington city, and executing the whenever by any reasonable construction it note in that place, and his sister executing can be made consistent with the law, and the note in Bracken county, Kentucky, rewhich it was competent for the parties to garded or expected their liability to be deteradopt.” Bell v. Packard, 69 Me. 105, 31 mined by the statute of New York, and Am. Rep. 251; Wharton, Confi. L. § 429. The when sued in Kentucky could defeat the substantial essence of a contract evidenced recovery upon the paper on the ground that by a promissory note is the undertaking by the charge of the extra interest rendered the the makers to pay the principal sum of entire obligation void.” Our statute makes money named. The place of payment is an void, at her option, the suretyship con

tracts of a married woman executed within circuit court was of opinion that, treating this state. If a promissory note executed Mrs. Young as a mere surety on the Chicago within this state by a married woman, as notes, which she had the unquestioned capacsurety, by merely inserting therein that it ity to make, she could have been sued upon should be payable in Cincinnati, Chicago, or them in either the state of Pennsylvania or St. Louis, might be made an Ohio, Illinois, the state of Kentucky, and a personal judg. or Missouri contract, and thereby rendered ment recovered against her, and that the revalid and enforceable against her, our stat- newal of the notes in the state of Pennsylute would be easily evaded, and its beneficent vania under the facts of this case did not provisions in a large measure destroyed. release her nor lessen her liability.” The We cannot so construe these contracts, but court did not err in overruling appellant's the declarations of principles above quoted demurrer to the second paragraph of reply. accord with our views, and the conclusion In answer to interrogatories propounded follows that appellee's first paragraph of re- by the parties, the jury found the following ply was sufficient, and the demurrer to the facts specially: That the three notes were same was rightly overruled.

given in renewal of a note for $3,750, dated Appellant has cited a number of Indiana July 30, 1900, for money loaned to Rudolph cases, in some of which the court has said H. Garrigue, and upon which Lida M. Garthat the maker of a promissory note will be rigue was surety, and for the payment of held liable according to the place where it is which collateral security was pledged, and payable. This and other like statements which note was signed in Chicago, and sent were made with regard to the liability of the by mail to the Noble County Bank at Kenmaker to pay interest or damages after pro- dallville, Indiana, and a draft for the test; and the decisions of the questions prop- amount, less exchange and revenue stamps, erly presented in those cases are not in con- sent by mail to R. H. Garrigue at Chicago; Ulict with the result reached in this case. In that the notes in suit were executed in the cases of Hunt v. Standart, 15 Ind. 33, 77 Chicago, Illinois, where the said Lida M. Am. Dec. 79, and Midland Steel Co. v. Citi. Garrigue then resided, and ever since has zens' Nat. Bank (Ind. App.) 72 N. E. 290, resided, and that at and before that time the only question involved was the liability the statute hereinbefore set out was, and of the indorsers. In the cases of Butler v. the same still is, in force in said state; that Myer, 17 Ind. 77; Broicning v. Merritt, 61 said notes were signed by Lida M. GarInd. 425; Gray v. State, 72 Ind. 567; and rigue as surety for her husband, who, with k'opelke v. Kopelke, 112 Ind. 435, 13 N. E. her consent, enclosed them in a sealed letter, 695,—the contention related only to the rate and mailed them, with a draft for the interof interest recoverable. In Fordyce v. Nel est accrued on the old note, at Chicago, dison, 91 Ind. 447, the question was to the rected to the Noble County Bank at Kendallnegotiability of the note, and in Brown v. ville, Indiana; that the notes were prepared Jones, 125 Ind. 375, 21 Am. St. Rep. 227, 25 and sent by the bank to R. H. Garrigue at N. E. 452, the controversy was with regard | Chicago, who inserted the words “on or beto days of grace and the time of protest. fore," and signed and caused his wife to sign

If the first paragraph of reply was suffi- them, and that the signing and mailing at cient, it follows, also, that the second para Chicago as aforesaid was done in pursuance graph is good. The second paragraph, in ad- of an agreement to that effect between dition to the allegations of the first, averred Rudolph H. Garrigue and appellee, presithat the notes in suit were given in pay- dent, and acting for said bank; that the ment of a prior note for the same amount, bank received said notes by mail, and there. executed by the same parties in the state of upon returned the old note by mail to R. H. Illinois, and payable in that state. The first Garrigue at Chicago, and subsequently innote, upon the facts alleged, was a valid and dorsed the notes to appellee; and that the enforceable obligation against both the mak- bank and appellee at all times knew that

The surrender of this note was a suffi- Lida M. Garrigue was surety for her huscient consideration for the execution of the band on said notes. These facts were not in renewal notes, and by the execution of the conflict with the general verdict, but, in our renewal notes the appellant, Lida M. Gar- opinion, support it; and what has already rigue, as between her and the payee, became been said in discussing the sufficiency of the bound, not as surety, but as principal. replies leads to the conclusion that there Vogel v. Leichner, 102. Ind. 55, 1 N. E. 554 ; was no error in overruling appellant's moYoung v. Hart, 101 Va. 480, 484, 44 S. E. tion for judgment in her favor upon the 703; Savage v. Fox, 60 N. H. 17; New York

to interrogatories, notwithstandL. Ins. Co. v. McKellar, 6s N. H. 326, 44 Atl. ing the general verdict. 516. In the case of Young v. Hart, 101 Va. Appellant's motion for a new trial em480, 484, 44 S. E. 703, the court said: “The braced a number of causes, many of which

ers,

answers

have been waived. Appellee testified to a delivered in Illinois, but in Indiana, and, if conversation between himself and Rudolph this contention is true, then they are Indiana H. Garrigue had at Chicago the latter part contracts, and the judgment must be reof July, 1901, with regard to the payment or versed. A precedent agreement between the renewal of the note then outstanding and principal in the notes and the appellee actalmost due, in which Mr. Garrigue said that ing for the payce was shown by the evidence, he could not pay the note, but would make according to the terms of which the notes new notes on shorter time, and have his were to be signed by the makers in Chicago, wife sign them, and the notes would then be and sent to the payee by mail. They were sent to Kendallville, and that a wife could properly signed and sealed in an envelope sign in Illinois, and her signature would be addressed to the payee, and delivered to the good against her property; and appellee said Unite] States mail in the City of Chicago, that would be satisfactory. Appellant, Lida according to agreement, and, in our opinion, M. Garrigue insists that the admission of the delivery was then and thereby completed. this evidence over her objection was error. Ir the case of Purviance v. Jones, 120 Ind. Appellee suggests that the record does not | 162, 16 Am. St. Rep. 319, 21 N. E. 1099, show that she was not present during this Justice Mitchell, speaking for the court (p. conversation. Her absence is not shown, un- 164 of 120 Ind., p. 321 of 16 Am. St. Rep., p. less it may be implied from the objection 1099 of 21 N. E.), says: “While it is not itself. As we have already shown, it will indispensable that there should have been an not be inferred from the substance of the actual manual transfer of the instrument notes themselves that they were Indiana con- from the maker to the payee, yet to constitracts, and appellee's case was already made tute a delivery it must appear that the out, without reference to this extraneous maker in some way evidenced an intention to evidence. If the notes were Illinois con- make it an enforceable obligation against tracts as against the principal maker, they himself, according to its terms, by surrenderwere the same, also, as to the surety under ing control over it, and intentionally placing the facts of this case. Appellant, Lida M. it under the power of the payee, or of some Garrigue had no evidence, other than the third person for his use.” In the case of notes themselves, upon which to rest her Wm. Glenny Glass Co. v. Taylor, 99 Ky. 24, contention that they were Indiana contracts. 34 S. W. 711, involving conflicting laws, It follows, therefore, that, conceding her Pryor, Ch. J., in the opinion says: “The absence, and that she could not be bound by note, when signed by Mary D. Bradford in the conversation to which objection was Kentucky, and inclosed to the payee, was made, the utmost that may be said is that an executed instrument; as much so as if the evidence was harmless.

the payee had been present and the note deExceptions were taken to the giving and livered to her in Kentucky.” In the case of refus:il of the court to give, upon request, Barrett v. Dodge, 16 R. I. 740, 27 Am. St. a number of instructions. The general Rep. 777, 19 Atl. 530, the court, speaking ground of the objections of the appellant to upon the question under immediate considerthese instructions was predicated upon the ation, said: “In the absence of instructions view that the law of the place of payment to the maker as to the mode by which he governs the validity of the notes. This sub- should return them when signed, the payees ject has been sufficiently discussed.

must have contemplated that the maker Objection is urged to instruction No. 13 would return them by the natural and ordigiven by the court; but we are unable to nary mode of transmitting such obligations, find this instruction, either in full or in sub- and must be deemed to have authorized him stance, set out anywhere in the brief of to so return them. The natural and ordiappellant, and must treat the objection as nary mode of transmitting them was by waived for noncompliance with subdivision mail, the mode adopted by the maker. In 5 of rule 22 of this court (55 N. E. vi.). such cases the postoffice may be regarded as Chicago Terminal Transfer Co. v. Walton the common agent of both parties,-of the (Ind.)72 N. E. 646; Chicago & E. R. Co. v. maker for the purpose of transmitting the Lain (Ind. App.) 72 N. E. 539 ; Lake Erie note, and of the payee for the purpose of & W. R. Co. v. McFall (Ind.) 72 N. E. 552; receiving it from the maker. By depositing Penn Mut. L. Ins. Co. v. Norcross, 163 Ind. the note in the mail with the intent that 379, 72 N. E. 132; Barricklow v. Stewart, it shall be transmitted to the payee in the 163 Ind. 438, 72 N. E. 128.

usual way, the maker parts with his The remaining question presented by the dominion and control over it, and the delivinotion for a new trial is whether the ver ery is, in legal contemplation, complete." dict of the jury is sustained by sufficient We accordingly conclude that the notes were evidence, or is contrary to law. Appellant's fully executed by delivery in the state of counsel contenis that the notes were not | Illinois, and are Illinois contracts, and, un

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