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show that he informed them of the number and the denomination of each. Indeed, it is not shown that the witness ever knew, if this were important, the exact number of coins retained by defendant and the denomination of each. All that he did know was, that it was silver money in small coin. From this statement it is manifest no variance is shown. There is clearly po merit in the other grounds of the motion.
The evidence introduced by defendant, which was rebutted by the state, tending to show that his name is Viberg, instead of the one by which he is indicted, was wholly impertinent to the issue in the case. His plea of not guilty was an admission that the name by which he was indicted was his true name and a
the misnomer. Had this evidence remained in, it could have availed him nothing. There was, therefore, no error in excluding it: Wells v. State, 88 Ala. 239,7 South. 272.
The other exceptions reserved to the admission of evidence are unmeritorious. The refusal of the court to allow defendant to withdraw his plea of not guilty and to file a plea of misnomer was matter resting in its discretion and is not revisable: Hubbard v. State, 72 Ala. 164.
The defendant's request of the court to give the several written charges must be construed as a request to give them in their entirety. So construing it, if any one of the charges was improper, there was no error in refusing all of them: Rarden v. Cunningham, 136 Ala. 263, 34 South. 26. Among them was the affirmative charge, which, of course, could not have been given.
That Larceny may be committed by converting money delivered to another for the purpose of having it changed, see the monographic note to People v. Miller, 88 Am. St. Rep. 578, 579.
UNITED STATES SAVINGS AND LOAN COMPANY Y.
[137 Ala. 119, 33 South. 934.) USURY-Conflict of Laws. If a contract is made in one stato to be performed in another, the parties may contract for the highest rate of interest allowed by either state without offending against the usury laws of the other, unless this is done as a subterfuge and devico to evado usury laws. (p. 20.)
USURY_Conflict of Laws.-If a contract is not usurious in the state where it is made and is to be performed, it will be enforced in another state notwithstanding it would have offended against the usury laws of that state had it been made there. (p. 21.)
CONFLICT OF LAWS.—The place where a contract is deliv. ered or first becomes a binding obligation, is deemed the place of the contract for the purpose of designating what law governs. (p. 22.)
USURY-Conflict of Laws-Mortgage to Secure Loan.—The taking of a mortgage on lands in one state to secure the payment of money borrowed in another does not change the rule in respect to the laws of the place which are to govern the transaction as to usury. This is governed by the laws of the state where the money is borrowed. (p. 22.)
USURY--Conflict of Laws.—Mortgages on land in one state made to a corporation organized and acting in another state in the usual and customary form adopted by such corporation in doing like business, legal in its home state, and containing a stipulation that they are to be governed by the laws of that state, are not mere de. vices to evade the usury laws of the other state, or made for that purpose, though opposed thereto. (p. 22.)
White & Howze, for the appellant,
S. W. John, for the appellee.
121 TYSON, J. The issue presented by the pleadings in this cause is, whether the note and mortgage executed by complainant to the respondent is an Alabama or a Minnesota contract. It is not contended in argument by complainant that the mortgage is usurious if it is a Minnesota 122 contract, nor is it insisted by respondent that it is not usurious if it is an Alabama contract.
It is undoubtedly the law as said in Pioneer Sav, etc. Co. v. Nonnemacher, 127 Ala. 545, 30 South. 87, “that where a contract is made in one state to be performed in another state, the parties may contract for the payment of the highest rate of interest allowed by either state without offending against the usury laws of the other; the exception to the rule being that this may not be done as a subterfuge and device and where the purpose and intention of the parties is simply to evade the usury laws.” Or to state the proposition in the form in which it is stated in Ilayes v. Southern Home etc. Assn., 124 Ala. 669, 82 Am. St. Rep. 216, 26 South. 530: "Under established rules, a note or bond made payable at a particular place or which is expressly made with reference to the laws of a particular state is governed in respect to its obligation as to interest by the law of the place so stipulated as the place of performance. . . . . An exception to these rules is where such stipulations are found to
be a mere device to evade the usury laws, in which case they will be held void as against public policy."
Confessedly, these principles are only applicable to contracts made in one state to be performed in another, or where made in one state and contain a stipulation that they shall be gov. erned by the laws of another, where payable, and have no application when the contract is made and to be performed in the same state. In the latter case the locus contractus and the locus solutions being the same, if the contract is not usurious where made and to be performed, it will be enforced by the courts of this state, notwithstanding it would have offended the laws of this state against usury, had it been made here: Story on Conflict of Laws, 8th ed., 397.
A careful examination of the evidence, we think, sustains the contention of the respondent, that the note and mortgage are Minnesota contracts. In addition to the note being made payable at the office of the respondent's treasurer in St. Paul or to its trustee, in Minneapolis, Minnesota, there is a stipulation in both the note and mortgage that they are "understood to be made with reference 123 to and under the laws of the state of Minnesota.” Furthermore, the evidence shows that the respondent is a corporation organized under the laws of Minnesota with a place of business in that state. That the written application for the loan and to become a stockholder were each addressed to the company at St. Paul. Although signed in Birmingham and delivered to one of respondent's agents for the purpose of transmitting them to the company, they had to be examined and passed upon by the officers of the respondent at its place of business. After receiving their applications, the note and mortgage, certificate of stock and its assignment were prepared in St. Paul by respondent's attorney and forwarded to its attorneys in Birmingham to have properly signed, recorded, etc., but without authority to finally accept the note and mortgage and certificate of stock for the company. Their acceptance for the security for the loan was to be determined upon after a further examination of the abstract of title and other papers by the attorney of the company in St. Paul. In other words, the evidence shows that there was no delivery of the note and mortgage in Alabama, but that they were in fact delivered in the state of Minnesota. Indeed, the draft drawn by the respondent on its depository for the amount of the loan, while sent to a bank in Birmingham to be handed the complainant, was not to be paid until the papers, after examination by respondent's at
torney in St. Paul, were approved. This method of payment was in accordance with the agreement made between the parties as shown by the applications for the loan.
It is an elementary principle that a contract must be mutual and no proposition or offer becomes a contract until it is accepted and approved by both parties. It is also the law that “where a contract is delivered or first becomes a binding obligation upon the parties is deemed the place of the contract for the purpose of designating what law governs": 3 Am. & Eng. Ency. of Law, 1st ed., 547; McGarry v. Nicklin, 110 Ala. 559, 55 Am. St. Rep. 40, 17 South. 726. Under the evidence we are constrained to hold that the note and mortgage were executed in Minnesota, and therefore a Minnesota contract: McGarry v. Nicklin, 110 Ala. 559, 55 Am. St. Rep. 40, 17 South. 726, and cases cited therein; Farmers' Savings etc. Assn. v. 124 Kent, 131 Ala. 246, 30 South. 874; United States Sav. etc. Co. v. Miller (Tenn.), 47 S. W. 17.
It was entirely lawful for the complainant to borrow money in the state of Minnesota and lawful for the respondent to loan him the money there and to secure its repayment by accepting from him a mortgage on lands in Alabama. And the taking of the mortgage will not change the rule in respect to the laws of the place which are to govern the transaction as to usury. "The legal fulfillment of a contract of loan, on the part of the borrower, is repayment of the money, and the security given is but the means of securing what he has contracted for, which, in the eye of the law, is, to pay where he borrows,unless another place of payment be expressly designated by the contract”: De Wolf v. Johnson, 10 Wheat. 368; Tyler on Usury, 88, 89; 1 Jones on Mortgages, 15th ed., sec. 657 et seq. Besides the form of the contract adopted by the respondent in making and securing the loan was the usual and customary one employed by it in doing the same business in twenty-four states and is substantially the same form employed by it since its organization: Bennett v. Eastern etc. Assn., 177 Pa. St. 233, 55 Am. St. Rep. 723, 35 Atl. 684.
Furthermore, if it be conceded that we are mistaken in our finding of the fact from the evidence that the note and mortgage were delivered in Minnesota, but were in fact delivered in Alabama, yet the evidence fails to establish that the stipulations in said note and mortgage "understood to be made with reference to and under the laws of the state of Minnesota” were a mere device to evade the usury laws of this state. No such
sinister purpose appears in the contract, and the evidence fails to afford any reasonable inference that there existed any suche sinister motive in making the note payable in Minnesota : Hayes v. Southern Home etc. Assn., 124 Ala. 669, 82 Am. St. Rep. 216, 26 South. 530; Pioneer Savings etc. Co. v. Nonnemacher, 127 Ala. 345, 30 South. 87.
Reversed and remanded.
Haralson, J., dissenting.
Conflict of Law in the matter of usury is discussed in the monographic notes to Bank of Newport y. Cook, 46 Am. St. Rep. 201, 202; McGarry v. Nieklin, 55 Am. St. Rep. 50, 51. It has been held that a note executed and payable in one state, secured by a mortgage or land in another, is governed by the interest laws of the former: Thompson v. Kyle, 39 Fla, 582, 63 Am. St. Rep. 193, 23 South, 12. But a loan by a corporation to a citizen of another state, secured by a mortgage on land in that state, has been governed in the settlement of interest on foreclosure by the law of the latter state, although the contract of loan and mortgage stipulates that it is solvable by the laws of the state of the domicile of the corporation, and is made with reference to its laws: Meroney v. Atlanta etc. Loan Assn., 116 N. C. 882, 47 Am. St. Rep. 841, 21 S. E. 924. See, further, People's Bldg. etc. Assn. v. Berlin, 201 Pa. St. 1, 88 Am. St. Rep. 764, 50 Atl. 308; Hale v. Cairnes, 8 N. Dak. 145, 73 Am. St. Rep. 746, 77 N. W. 1010; National Loan etc. Assn. v. Burch, 124 Mich. 57, 83 Am. St. Rep. 311, 82 N. W. 837; Binghamton Trust Co. 5. Auten, 68 Ark, 299, 82 Am. St. Rep. 295, 57 S. W. 1105, A loan by a foreign association to a citizen of this state is solvable by its: laws, notwithstanding the loan is stipulated to be paid at the domicile of the association, wher such stipulation is designed to evade the usury laws of this state: Pacific States Sav. etc. Co. v. Hill, 40 Or. 280, 91 Am. St. Rep. 477, 67 Pac. 103; Vermont Loan etc. Co. v. Hoffman, 5 Idaho, 376,95 Am. St. Rep. 186, 49 Pac. 314.
ALABAMA COAL AND COKE COMPANY v. SHACKEL
FORD. [137 Ala, 224, 34 South. 833.] RECEIVERS OF CORPORATIONS.—It is No Ground for Appointment of a receiver of a corporation that the directors in office are holding over after the year for which they were elected in default of the election of their successors. The cause of such default is of no consequence. (p. 24.)
RECEIVERS-Corporations.-It is No Ground for the appointment of a receiver of a corporation that its directors have paid to the estate of a deceased kinsman director money of the corporation without authority, or that they have voted to themselves salaries as officers of the corporation in abuse of their trust, or that they have fraudulently sold the corporate lands. (p. 25.)