owner was carrying on his lawful business, and this court, reversing the trial judge, held that negligence would not be imputed to the owner from the mere fact that the killing resulted from its explosion. It is there said that the reasonable rule was the one announced by Judge Wallace in Rose v. Transportation Co., 21 Am. Law Reg. 522, as follows: "That from the mere fact 41 of an explosion it is competent for the jury to infer as a proposition of fact that there was some negligence in the management of the boiler, or some defect in its condition; but that it ought not to have the weight of a conclusive presumption, whether of law or fact, so as to compel the defendant, in order to avoid liability, to prove affirmatively that they were guilty of no negligence, and that the accident was unavoidable."

In the course of the opinion, and after an exhaustive review of the authorities, Judge Cooper concluded "that the question of the effect of the mere proof of the killing of the plaintiff's husband by the explosion of the defendant's boiler is one of grave doubt and great importance."

The reason for the court's declining to apply the maxim of "res ipsa loquitur" to such a case, and the adoption of the more restricted rule, is found in what immediately follows: "Steam," it has been well said, "has come into such general use as a motive power. not only in the operations of commerce and manufactures, but even in those of agriculture, that a rule of law making those who employ it insurers of the safety of others against damages arising from its use would not only be contrary to the analogies of the law, but would impose serious restraints upon the most necessary and beneficial industries. Both the proprietor of machinery impelled by steam and the engineer in charge of such machinery have the 42 strongest interest for watching over its safety. The property of one and the life of the other depend upon constant vigilance in this regard. These motives will ordinarily secure that degree of skill and attention which the safety of the public demand, without the aid of a rule making the proprietor liable in any event for damages from an explosion." We think that that case is thus easily distinguished from the present, where the injury results from animals generally susceptible to control, and, when looked after by their master with ordinary prudence, are unlikely to inflict injury either on the property or person of another. We, therefore, hold that the trial judge was in error

in declining to give the special request. The judgment is therefore reversed, and the case is remanded for a new trial.

Other errors are assigned, but, without passing on them, we are content to rest our reversal on the one indicated.

Whether Negligence is presumed from the running away of a team is considered in Creamer v. McIlvain, 89 Md. 343, 73 Am. St. Rep. 186, 43 Atl. 935; O'Brien v. Miller, 60 Conn. 214, 25 Am. St. Rep. 320, 22 Atl. 544; and whether leaving a horse in the street untied is negligence is considered in Belles v. Kellner, 57 N. J. L. 255, 91 Am. St. Rep. 429, 51 Atl. 700, 54 Atl. 99.

FIRST NATIONAL BANK OF GENEVA v. SHAW. [109 Tenn. 237, 70 S. W. 807.]

CONTRACT-By What Law Controlled. The law of the place where a contract is consummated by delivery or otherwise governs the construction of a contract made in one state to be performed in another, and not the place where it was signed. (p. 841.)

CONTRACTS-Place of Execution.-A note signed in Tennessee and forwarded to the payee in Ohio, and by its terms payable in that state, is a Ohio contract. (p. 841.)

MARRIED WOMEN-Contracts of.-In Tennessee, the contracts of a married woman are voidable and will not be enforced against her, when there is a plea of coverture. (p. 843.)

MARRIED WOMEN-Contracts of Made in Another StateLaw of the Forum, When Controls.-A contract of a married woman made in Ohio, while she resides in Tennessee, and enforceable by the laws of the former, but not under the laws of the latter, will not support an action therein. The law of the forum controls. (p. 844.)

R. C. M. Cunningham and Chambliss & Chambliss, for the bank.

John C. Lock, for Shaw et al.

238 MCALISTER, J. The only question presented for determination upon this record is the liability of the defendant Mrs. Stella V. Harley upon the following note:

"$500.00.

Geneva, Ohio, Dec. 3, 1892. "Six months after date, value received, we jointly and severally promise to pay to the First National Bank of Geneva, at their banking house, $500.00 interest eight per cent after maturity. Interest paid to maturity $17.50.

"D. H. HARLEY.

"STELLA V. HARLEY,
"M. P. SHAW."

Mrs. Harley, in her answer to the bill, avers that she was a married woman at the time said note was executed, and relies on the plea of coverture. She 239 further avers that she and her husband, D. H. Harley, were residents and living in the state of Tennessee at the time said note was executed, and had since continuously lived in this state, and she denies that the note was an Ohio contract.

The facts found by the court of chancery appeals are, viz.: 1. The note sued on is a renewal note. The original note was made June 6, 1891. It was renewed December 5, 1891; renewed again January 4, 1892, and again December 3, 1892, the note last renewed or made being the one in suit. 2. Previous to the execution of the first note, and since 1889, Mrs. Harley was a married woman, living with her husband continuously in Tennessee. She owned no property in the state of Ohio. 3. The weight of the proof is, and we so find as a fact, that she signed all the notes in Tennessee; and it is practically conceded, and, if not conceded, we find the fact to be, that she signed the note sued on in Tennessee. 4. The original note was negotiated in Geneva, Ohio. The note sued on was received by the bank of Geneva, Ohio, through the mail, from Chattanooga, Tennessee. 5. It is conceded that, under the statute law of Ohio, married women are liable in that state on their contracts.

It will be perceived that the legal question presented is whether a married woman, domiciled with her husband in Tennessee, is liable on a note signed by her in this state, but payable in the state of Ohio. The 240 first question, of course, to be determined, is whether, upon the facts found, this is a Tennessee or an Ohio contract. Says Mr. Tiedeman, in his work on Commercial Paper, page 506: "It is not the law of the place where the contract was signed or executed, but the law of the place where the contract was consummated, by delivery or otherwise, which governs the construction of the contract made in one state, to be performed in another. Thus, notes drawn in one state, and delivered and payable in another, for purchases made there, are governed by the law of the latter state, and are considered there made; for by delivery, only, the act of making is fully consummated." So it was said in Hall v. Cordell, 142 U. S. 116, 12 Sup. Ct. Rep. 154: "But where there is nothing to show that the parties had in view, in respect to the execution of the contract, any other law than the law of the place of performance, that law must determine

the rights of the parties": Hubble v. Morristown Land Co., 95 Tenn. 585, 32 S. W. 965. In 2 Parsons on Contracts, 586, it is said: "So if one in New York orders goods from Boston, either by carrier whom he points out, or in the usual course of trade, this would be a completion in the making of the contract, and it would be a Boston contract, whether he gave a note, or a note payable in Boston, or one without express place of payment." We think it quite plain that the note in suit is an Ohio contract, notwithstanding it was signed by Mrs. Harley 241 in Tennessee, it having been delivered and consummated in Ohio, and is payable in that state, as the place of performance: Armstrong v. Best, 112 N. C. 59, 34 Am. St. Rep. 473, 17 S. E. 14; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241.

The next inquiry is whether the plea of coverture to a note made in Ohio, valid and enforceable against a married woman in that state, is available in a suit on said note in this state, where such a contract is voidable at the election of the married woman. In Story on Conflict of Laws, chapter 4, section 103, it is said: "In regard to questions concerning infancy, competency to marry, incapacities incident to coverture, guardianship, and other personal qualities and disabilities, the law of the domicile of birth, or other fixed domicile is not generally to govern, but the lex loci contractus aut actus, the law of the place where the contract is made or the act done," or, as he elsewhere sums it up, "although foreign jurists generally hold that the law of the domicile ought to govern in regard to the capacity of persons to contract, yet the common law holds a different doctrine, namely, that the lex loci contractus is to govern": Story on Conflict of Laws, secs. 103, 241.

Chancellor Kent, while at one time inclined to the doctrine of the civilians, afterward approved the doctrine which has just been quoted from Mr. Story: 2 Kent's Commentaries, 233, note, 458, 459, and note. The 242 same doctrine was announced by this court in Pearl v. Hansborough, 9 Humph. 426, in an opinion by Judge Turley. Applying this rule, it was held in Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241, Mr. Justice Gray delivering the opinion of the court, that a contract of guaranty, signed by a married woman, domiciled with her husband in Massachusetts, and sent by mail to Maine, where it was accepted and acted on, was a contract made in the state of Maine, and, when sued on in the state of Massachusetts, would be determined by the law of Maine. In that case it appeared

that by the statutes of Maine, in force at the date of the contract of guaranty, the contracts of a married woman were valid and enforceable as if made by a feme sole, while the law of Massachusetts, as then existing, did not allow her to enter into a contract as surety or for the accommodation of her husband. But it further appeared that, since the making of the contract sued on, and before the bringing of the action, the law of Massachusetts had been changed so as to enable married women to make such contracts. The court of Massachusetts therefore permitted a recovery against a married woman on the contract of guaranty made in Maine: See, also, Bell v. Packard, 69 Me. 105, 31 Am. Rep. 251. But in Tennessee the contracts of a married woman are voidable, and will not be enforced against her when there is a plea of coverture. It would be a strange anomaly to hold 243 that such a contract made by a married woman in Tennessee would not be enforced by our courts, while the same contract, if made in another state, would be valid and enforceable.

As stated by Mr. Justice Gray, in Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241: "As the law of another state can neither operate nor be executed in this state by its own force, but only by the comity of this state, its operation and enforcement here may be restricted by positive prohibition of statute. . . . . It is possible, also, that in a state where the common law prevailed in full force, by which a married woman was deemed incapable of binding herself by any contract whatever, it might be inferred that such utter incapacity, lasting throughout the joint lives of husband and wife, must be considered as so fixed by the settled policy of the state for the protection of its own citizens that it could not be held by the courts of that state to yield to the law of another state in which she might undertake to contract."

While it is true, as contended by counsel in his very able argument, that the tendency of legislation in Tennessee is to enlarge the contractual power of married women, yet such power is very limited and circumscribed, and the settled policy. of this state is to declare nugatory contracts made by her whenever her plea of coverture is interposed.

In Bank of Columbia v. Walker, 14 Lea, 299, it was held that the lex loci contractus would govern when not repugnant 244 to the lex fori. The court stated the rule to be: "Whether we consider the subject matter under the head of comity and its rules, or under that of real and personal statutes and its