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 governed 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 such 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 monographie notes to Bank of Newport v. Cook, 46 Am. St. Rep. 201, 202– MeGarry v. Nicklin, 55 Am. St. Rep. 50, 51. It has been held that a note executed and payable in one state, secured by a mortgage om 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. Loam 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. StRep. 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. v. 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, when such stipulation is designed to evade the asury 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. SHACKELFORD.

[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.)

RECEIVERS Corporations. It is No Ground for the appointment of a receiver for a corporation that its stockholders are not allowed access to the corporate books and papers, or that the directors refuse to disclose material facts connected with the corporate business. (p. 26.)

RECEIVER FOR CORPORATION.—A stockholder in a corporation cannot invoke the action of a court of equity in appointing a receiver for the corporation to meet a necessity produced by his own wrong. (p. 26.)

Smith & Smith, for the appellants.

London & London, for the appellees.

230 MCCLELLAN, C. J. It is no ground for the 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 by the stockholders. And the cause of such default is of no consequence. It may be that the stockholders desired the directors to continue in office and it was inconvenient to meet and re-elect them, or that an election was permitted through mere inadvertence, or that there were such dissensions among the shareholders and the holdings of the dissentients were so equally divided that a majority could not be brought to the support of any set of individuals for the directorate; but whether the failure to elect resulted from any one or the other of these causes or any other whatever, it would leave and continue in office-whether de jure or de facto is immaterial-directors competent to conserve the property and carry on the business of the corporation, and there would. be no necessity to take the concern out of their hands and commit it to a receiver. If the corporation had no directors and none could be elected, a different case would be presented. If there were directors among whom such dissensions existed as that the corporate functions could not be discharged and its assets and business were imperiled in consequence, necessity for the intervention of the court of chancery by the appointment 231 of a receiver might arise: Sternberg v. Wolff, 56 N. J. Eq. 389, 67 Am. St. Rep. 494, 39 Atl. 397. Or if there are two sets of men, each claiming to constitute the directory, the claim of each being of substantially doubtful validity, and each is scrambling for the possession of the corporate property and the control of the corporate business, a temporary receiver may be appointed at the suit of the stockholders: Jasper Land Co. v. Wallis, 123 Ala. 562, 26 South. 659. In all these cases there is strangulation and paralysis of the corporate functions and re

sulting probability of serious detriment to its property and business, which can be averted only by the appointment of a receiver. This is not true of the case first stated, which is the case at bar. Here there is no strangulation, no paralysis. Here is a board of directors in office, in undisputed possession and control of the corporate assets and in the exercise of all corporate powers and functions; and they are legally competent to conserve the corporate property and carry on its business. Their acts as directors are as efficacious and valid as if they had been elected at the last annual date for the election of directors. They are in the same sense and to the same extent trustees for the stockholders and answerable to them for any breach or abuse of the trust. The property in their hands is in no more peril of maladministration and the business of the concern is no more likely to be improperly carried on than if they had been elected on yesterday. Being trustees, if they have voted to pay and paid to the estate of a deceased kinsman who was a director moneys of the corporation which they had no authority to so appropriate, the complainant, as a stockholder, has the right to call upon them to sue in the name of the corporation for its recovery, and, they declining, he may file a bill in his own name on behalf of the corporation to that end. So, too, if they, as directors, have voted to themselves salaries as officers of the corporation in abuse of their trust, the complainant has like rights and remedies. If they undertake to sell the lands of the corporation in fraud of it to other corporations in which they are interested-of which there is a bare innuendo in Shackelford's affidavit-the court of chancery is wide open to Shackelford both for discovery of the facts and relief upon them. 232 Moreover, at Shackelford's instance, the stockholders adopted a by-law, which he insists is valid and operative, to the effect that no lands of the corporation should be sold without the consent, by ratification or confirmation, of a majority in value of holdings of all the stockholders, and thus assurance is made doubly sure that no receiver is necessary to protect his interests in respect of the sale of lands. Then there is something in the bill about complainant not being allowed access to the books and papers of the corporation. These averments were not only not proved but affirmatively disproved on the hearing; and were they true the remedy is plain, adequate and complete short of the appointment of a receiver. Then, too, it is said that the directors refuse to disclose material facts connected with the corporate business, the value of its lands and