CHAPTER III.

CONTRACTS AND CONVEYANCES.

SECTION 1. PERSONAL CONTRACTS.

§ 55. In general. The contracts a person may make divide themselves conveniently, for the purposes of this discussion, into two classes; those that involve merely personal rights and duties, and those that involve property. In the first class may be grouped contracts for rendering services or paying money, including notes, marriage contracts, and the like. They do not directly involve any particular property. In the second class may be placed all contracts pertaining to property, including all instruments of transfer commonly used to convey title to property between living persons, such as contracts of sale of personal property or real estate, deeds, mortgages and the like. This classification excludes the instrument of transfer by which title is passed upon death of the party who executed it. That instrument, the will, will be discussed in connection with testate succession, Chapter V, Section 2, below.

§ 56. Validity of business contract determined by law of place where made. Capacity of maker. In Milliken v. Pratt (1) Mrs. Pratt agreed to guarantee the payment of any sums of money Milliken should advance to her

(1) 125 Massachusetts, 374.

husband. The Pratts were domiciled in Massachusetts. The contract, however, was made and to be performed in Maine. By the law of Maine a married woman was no longer subject to the usual common law disabilities, and a contract made by her in that state was valid. On the other hand, in Massachusetts, the state of Mrs. Pratt's domicile, married women were subject to the common law disabilities. It was contended by Mrs. Pratt that the law of Massachusetts should control, and that she should not be made liable on her contract of guaranty. The court held that the law of the place where the contract was made should control as to its validity and also as to the capacity of Mrs. Pratt to make a contract. Mrs. Pratt was held liable on her guaranty. The same rule has been applied to promissory notes. In Thompson v. Taylor (2) a married woman issued a promissory note in New York, but she was domiciled in New Jersey. By the law of the latter state she was incapable, being a married woman, of making a valid note. By the law of New York no such incapacity existed. The court held her liable on the note, because its validity and her capacity to issue it were determined by the law of the state where it was issued, and not by the law of her domicile.

It has been contended that the validity of a contract of suretyship should be determined by the law of the place of payment. In a case where the contract was made in Illinois, where a married woman could enter into such an obligation, and payable in Indiana, where the contract would have been void, the court said: "All

(2) 66 N. J. L., 253.

matters bearing upon the execution, the interpretation, and validity of the note, including the capacity of the parties to contract, are to be determined by the law of the place where the contract is made. All matters connected with the payment, including presentation, notice, demand, protest, and damage for non-payment, are to be regulated by the law of the place where the note is to be paid. If a contract is valid by the law of the place where it was executed, it is valid everywhere." The court determined that the place of payment did not determine the validity of the note (3).

§ 57. Same (continued). In the preceding subsection, the law of the state where the contract was made permitted a married woman to make contracts, and the law of the domicile did not. When the converse appears, the rule is the same. That is, where by the law of the domicile a married woman can make a contract, but by the law of the place where it was executed she cannot, the law of the place of execution controls. In Nichols v. Marshall (4) a married woman was domiciled in Iowa. By the law of Iowa, a married woman could enter into a valid suretyship obligation for her husband. In Indiana she could not. The defendant, a married woman, made a contract of suretyship in Indiana on behalf of her husband, and suit was brought upon it. The court decided for the defendant, saying: "It is more just, as well as more convenient, to have regard to the laws of the place of contract, as a uniform rule operating on all contracts and which the contracting parties may be pre

(3) Garrigue v. Keller, 164 Ind., 676.

(4) 108 Iowa, 518.

sumed to have in contemplation when making their contracts, than to require them, at their peril, to know the domicile of those with whom they deal, and to ascertain the law of that domicile, however remote, which in many cases could not be done without such delay as would greatly cripple the power of contracting abroad at all. Indeed, it is a rule of almost universal application, that the law of the state where the contract is made and where it is to be performed enters into, and becomes a part of, that contract, to the same extent and with the same effect as if written into the contract at length."

§ 58. Validity of marriage determined by law of place where solemnized. In one case (5), an English gentleman, who had not reached the age at which he could enter into a valid contract of marriage by the law of his English domicile, was temporarily in Scotland with a regiment of soldiers from England. While there he became engaged to and married Miss Gordon, the plaintiff. She asked for a restitution of conjugal rights against him. He sought to avoid the marriage on the ground of his incapacity to make the marriage contract. By the law of Scotland he was of sufficient age to enter into the contract.

The court would not annul the marriage, but decreed that "Miss Gordon is the legal wife of John William Dalrymple, Esq., and that he, in obedience to the law, is bound to receive her home in that character, and to treat her with conjugal affection, and to certify to this court that he has so done."

(5) Dalrymple v. Dalrymple, 2 Haggard Consistory, 54.

§ 59. Same (continued). The rule stated above was followed in later decisions of the English courts. In Simonin v. Mallac (6), Leon Mallac, a Frenchman, married a Frenchwoman. The marriage was solemnized in England and according to its laws the marriage was valid. But, by the laws of France, and by a prior French decision on the same case, the marriage was a nullity, as the parties had not complied with the requirements of the Code Napoleon, the French statute which regulated marriage contracts. The court held that the validity of the marriage contract should be determined by the laws of the place where made, and that the law of the domicile of the contracting parties was immaterial. These two cases were recently followed in England (7).

§ 60. Same: Exception. Two other important decisions rendered by the English court, which have had a great influence in the United States, seem to have departed from the rules announced in the cases thus far referred to. These cases are Brook v. Brook (8) and Sottomayor v. De Barros (9). In the former case William Lee Brook's first wife died, and he then married her sister, Miss Emily Armitage. Both parties were domiciled in England, but went to Denmark on a temporary visit and while there were married. The laws of England prohibited marriages between a widower and his first wife's sister, but, by the laws of Denmark, there was no prohibition against a marriage between such persons.

(6) 29 Law Journal, Probate, 97.

(7)

Ogden v. Ogden, 97 Law Times Report, 827. (8) 9 House of Lords Cases, 193.

(9) 3 Probate Division, 1.