#### Brown and another, Appellants, vs. Gates, Respondent. Same, Respondents, vs. Same, Appellant.

*October 27, 1903*

February *2, 1904.*

*Bills and, notes: Place of contract: Presumptions: Executory contracts made on^Sunday.*

1. *G.*living in Wisconsin and B. living in Massachusetts, met by agreement in New York city relative to a sale of B.’s lands situated in Florida. At that time and place *G.,*B. and the purchaser had negotiations relative to the sale of the lands on Saturday which were consummated on the following Monday. On the intervening Sunday there was made, executed and delivered to B. the promissory notes of G-.,' made payable in Massachusetts. *Held,,*that the place of the contract was the state of Massachusetts, and its laws, making void all executory contracts for the payment of money, including promissory notes,, made and delivered on Sunday, governed.

*3502. Where the place of performance of a contract is expressed, the presumption is that the parties^ contracted with reference to the law of that place.

'3. Where a contract is made in one state or country, to he performed in another state or country, it is to he regulated hy the laws of the place of performance, without regard to the place at which it was written, signed, or dated, in respect to its nature, validity, interpretation and effect, unless it clearly appears that the parties intended the contract should be governed by the law of the place where it was made.

Appeals from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.

*Reversed on defendant's appeal.*

This action is brought by plaintiffs as co-partners to recover on two notes made by defendant, each of $5,000, with interest, dated January 12, 1895, payable to plaintiffs, or order, on or before eighteen months after date at their office in Boston, Massachusetts. The defendant admits the making of the notes, and that there was a manual tradition of the same. He avers, however, that the notes were in fact made, executed, and delivered on Sunday,’January 13, 1895, under a parol agreement whereby it was understood that the notes were to have no validity until he realized in cash on his interest in the lands which were the subject-matter of the transactions through which the notes came into existence. The action was tried before a jury, which rendered a special verdict on the disputed facts in the case. The undisputed facts in the ease are that plaintiffs at the date of the notes were the owners of a lai’ge tract of Florida land, for which defendant procured one John Paul as prospective purchaser before these notes were made. On January 10, 1895; plaintiff *Brown*and defendant met, pursuant to an arrangement, at a hotel in the city of New York, with the view of consummating a sale of these lands to John Paul, who met with them on the following day. The negotiations resulted in an agreement that Paul should purchase the lands. This agreement was reached, -on Saturday, January 12th, .and consummated on the fol*351lowing Monday. It is averred tbat it was a condition of tbis transfer to Mr. Paul tbat tbe defendant should retain a one ■sixth interest in tbe lands. It is not disputed but tbat *Brown*and defendant, made some arrangements pertaining to tbis transaction, resulting in tbe not^ in question being made on -Sunday, January 13th. Among other facts tbe jury found tbat tbe notes were delivered to *Brown*for plaintiffs in tbe ■city of New York on tbis Sunday. Upon tbe verdict, judgment was rendered in plaintiffs’ favor for tbe full amount, with costs, with some condition as to its enforcement. Prom •this judgment both parties appeal.

Por tbe plaintiffs there were briefs by *Sylvester, Scheiber ■& Orth,*and oral argument by- *Bred Scheiber*and *O. A. Orth.*

*Buble-e A. Gole,*for tbe defendant.

Tbe following opinion was filed November 17, 1903:

Siebeoeeb, J.

Tbe defendant avers tbat tbe notes su.ed ■on by plaintiffs were executed and delivered on Sunday, and •are therefore void in law. As stated, there is no dispute but that tbe notes were signed by defendant on Sunday, January 13, 1895. Tbe jury found they were delivered to plaintiffs on tbe same day. Por tbis reason defendant contends they are void in plaintiffs’ bands. Courts have refused to maintain actions on contracts when made in violation of statutes for .the observance of Sunday, and have declared them •void as between tbe parties. *Hill v. Sherwood,*3 Wis. 343; *Troewert v. Decker,*51 Wis. 46, 8 N. W. 26; *Ainsworth v. Williams,*111 Wis. 17, 86 N. W. 551; *Cranson v. Goss,*107 Mass. 439. Tbe question, then, arises, Were these notes made 'in violation of tbe law which prohibits tbe making of such contracts on Sunday? Tbis presents an inquiry as to tbe place of contract of these notes. It is tbe general rule at ■common law tbat personal contracts are to be deemed contracts of tbe state or country where they are actually made. *352A well-established exception occurs, however, when a contract declares specifically, or it appears by implication, that it is to be performed or paid in another state or country. Then its validity, nature, obligation, and effect is to be governed by the law of the place of payment or performance. The grounds of this exception are that the presumed intention of the parties is that it shall be deemed to be a contract of the place of payment or performance, unless such presumption is rebutted by the facts and circumstances surrounding the making and the performance or payment. Under such circumstances the fact that notes are made payable at the place of the domicile of the payee is held to bo very persuasive evidence of the intention of the parties that it was to be a contract of the place of payment. The intention thus expressed has been commonly held so conclusive in its effect that it must prevail unless it is made to appear that it would invalidate the contract, and that the parties 'intended to avoid such a result. Of the many authorities in support of these principles, the following may be cited: *Bartlett v.*Collins, 109 Wis. 417, 85 N. W. 703; *Shores L.*Co. *v. Stitt,*102 Wis. 450, 78 N. W. 562; *Hill v. Spear,*50 N. H. 253; *Sondheim v. Gilbert,*117 Ind. 71, 18 N. E. 687; *Dickinson v. Edwards,*77 N. Y. 573, 33 Am. Rep. 671; Story, Conflict of Laws, §§ 278a, 280; 1 Daniel, Neg. Inst. § 865';^ Wood’s Ryl.es, Bills & Notes, 570. This conclusion in no way militates against the decision of this court in *Newman v. Kershaw,*10 Wis. 333. In that caso it was held that the place of payment as evidence of the intention of the parties that the law of'that place is to govern was overcome by the actual facts and circumstances of the case. An examination of the case will show a marked difference in the facts of the two cases. In the instant case we have an incidental meeting of the maker and payee of the notes in the city of New York, one of whom is domiciled in Massachusetts and the other in Wisconsin; the subject-matter of the contract out of which *353these notes arose being a sale and transfer of real estate situated in the state of Florida. No money was received or paid by either at the time the notes were executed. All further acts or dealings required by the contracts were to be performed in the state of Massachusetts. From these facts the conclusion must follow that the place of the contract is the state of Massachusetts, and its. laws govern. By the law of Massachusetts all executory contracts for the. payment of money, including bonds and promissory notes, made and delivered on Sunday, are void as between the parties. Supp. Pub. St. Mass. 1889-1895; *Cranson v.*Goss, 107 Mass. 439, and cases cited; *Comm. v. De Voe,*159 Mass. 101, 34 N. E. 85. Defendant’s contention concerning the jurisdiction of the court under the legislation embodied in chs. 1 and 446, Laws of 1903, need not be considered for the reason that, if this legislation be invalid as claimed, the case must be held as pending in the superior court, and, on the other hand, if valid, the provisions of these acts cover this case, and the court properly proceeded to a final. determination of the cause. 'From the foregoing it follows that the judgment must be reversed, and the action be dismissed. No necessity, therefore, arises for considering any of the other questions argued on the appeal of either the plaintiffs or defendant.

*By the Court.*— Judgment of the superior court is reversed on defendant’s appeal, and the cause is remanded, with directions to enter judgment dismissing the complaint. Plaintiffs to take nothing on their appeal.

Plaintiffs moved for a rehearing.

The following opinion was filed February 2, 1904:

SrEBKOKER, J.

A rehearing is asked in this case upon the grounds: (1) That the court mistook what are the undisputed facts of the case; and (2) that the decision is con*354trary to tbe established rule of law as recognized in tbe case of *Seamans v. Knapp-Stout & Co. Co.*reported in 89 Wis, 171, 61 N. W. 757.

It is insisted that tbe statements in tbe opinion referring to tbe time and place of meeting as 'incidental to tbe main objects of tbe transaction, and that “all further acts or dealings [after delivery] required by tbe contracts were to be performed in tbe state of Massachusetts,” are erroneous. It is claimed that these assertions are'refuted by tbe facts, in that such meeting was pursuant to an arrangement between tbe parties, and that tbe negotiations covering tbe transaction were in fact consummated on Monday succeeding tbe Sunday when tbe notes were executed and delivered. This contention is based on a misconception of tbe main purposes and objects of tbe parties. It is obvious that tbe place of meeting was a mere incident to tbe transaction, and was at a place which incidentally happened to be convenient to all. If circumstances bad favored another place and state for such meeting, no doubt such place would have been selected. Tbe claim that tbe court erroneously assumed that “all further acts or dealings required by tbe contracts were to be performed in tbe state of Massachusetts” misinterprets the terms of tbe decision, by applying this assumption to tbe transactions of tbe sale and conveyance of tbe lands, instead of restricting it to tbe notes, tbe only contracts involved in this suit. Under tbe facts, there is no room for question on this subject. Tbe undisputed facts and the finding of tbe jury show that tbe notes were made, executed, and delivered on Sunday; that plaintiffs bad possession of them from that day; and that tbe only necessary step for full performance of tbe contracts evidenced by these notes, and expressed on their face, was payment at tbe time and place specified, namely, tbe plaintiffs’ office, in tbe city of Boston, Massachusetts.

*355It is strenuously insisted tbát tbe decision is in conflict witb tbe law as announced in *Seamans v. Knapp-Stout & Co. Co.*supra, and contrary to tbe weight of adjudications. After a re-examination of tbe *Seamans*as well as tbe present case, we are reassured in tbe opinion.that tbe ruling is in accord witb tbe cases brought to our attention, and must stand as established by these and other cases. Tbe *Seamans Case*presented a dispute between an insflrance company of this state and tbe assured residing here, concerning insurance contracts negotiated by foreign agents to insure property without this state. Tbe question litigated was whether tbe contracts were in fact made within this state or not. It was determined before tbe trial court that tbe contracts were made and delivered in this state, where tbe parties resided, and where tbe contracts were to be performed, and sought to be enforced. Tbe question of tbe validity of a contract made in one state or country, to be performed in another, did not arise, and , consequently was not decided. It -is, however, claimed that tbe court, in its opinion, adopted tbe rule expressed in tbe excerpt from tbe opinion in tbe case of *Scudder v. Union Nat. Bank,*91 U. S. 406, when it declared:

> “Much of tbe seeming conflict in tbe adjudications upon tbe subject of *iex loci contractus*will disappear by carefully discriminating as to tbe precise nature of tbe issues and matter under consideration. Thus it has been held by tbe supreme court of the United States that matters bearing upon tbe execution, interpretation, and validity of a contract are determined by tbe law of tbe place where it is made. Matters connected witb its performance are regulated by tbe law prevailing at tbe place of performance. Matters respecting the remedy depend upon tbe law of tbe place where the suit is brought.”

Much stress is laid in argument on tbe point that this is tbe only authoritative declaration by this court on tbe subject, and that it conflicts witb tbe doctrine in tbe present *356case. Tbe cases in tbis court do not sustain tbis contention. In *Fisher v.*Otis, 3 Pin. 78, tbis court, speaking on tbe subject, say:

> “Tbe general rule unquestionably is that tbe *lex loci con-tractus*controls tbe nature, construction, and validity of tbe contract. . . . From tbis rule, however, contracts made in one country, but to be performed in another, have very generally been excepted. And tbe reason of tbe exception is that tbe parties are supposed to intend to be governed by tbe laws of tbe country where their contract is to be performed or to take effect.”

Tbis rule is recognized as tbe established law in *Newman v.*Kershaw, 10 Wis. 333, as well as *Shores L. Co. v.*Stitt, 102 Wis. 450, 78 N. W. 562; *Bartlett v.*Collins, 109 Wis. 477, 85 N. W. 703, and *Second Nat. Bank v.*Smith, 118 Wis. 18, 94 N. W. 664. In *Bartlett v.*Collins, tbis question was particularly considered and decided as a question necessarily involved in tbe case. It is there stated:

> “As a general rule, tbe construction and validity of a purely personal contract depends on tbe law of tbe place where made. Story, Conflict.of Laws. If, however, tbe contract is made in one place, to be performed in another, then, as a general rule, tbe place of payment and performance is tbe place of tbe contract. [Citing authorities.] Tbis rule is founded on tbe idea that, in making a personal contract to be fully performed in another state, the parties must have bad that other state in mind.”

To show that tbe parties did not intend the place of performance to be tbe place of tbe contract, when void at tbe place of performance, it must clearly appear that they intended to be governed by tbe law of tbe place where it was made. No such evidence exists in tbis case. Since tbe place of performance or payment is expressed in tbe notes, tbe presumption, therefore, is that tbe parties contracted with reference to tbe law of that place. Tbe foregoing cases in tbis court were regarded as controlling and applicable to tbe pres*357ent case, and were not then, and are not now, considered to be at variance with the decision in *Seamans v. Knapp-Stout Co. Co.*89 Wis. *171,*61 N. W. *757.*The case of *Scudder v. Union Nat.*Bank, 91 U. S. 406, decided that where a bill of exchange had been drawn by a firm of Chicago, Illinois, upon a firm at St. Louis, Missouri, and there was a parol acceptance by a member of the St. Louis firm present in Chicago where the bill was drawn, the validity of such acceptance is governed by the place of acceptance. In passing opinion upon this question, the court stated the general rule quoted in the *Seamans Case,*without giving the well-established exception, generally recognized, but not involved in that decision nor in the *Seamans Case.*We must hold the decisions of this court upon the question now presented have accepted and adhered to the rule adopted by the court in this case, ■ namely, “When a contract is made in one state or country, to be performed in another state or. country, it is to be regulated by the laws of the place of performance, without regard to the place at which it was written, signed, or dated, in respect to its nature, validity, interpretation, and effect” (1 Daniel, Neg. Inst. § 865), unless it clearly appears that the parties intended the contract should be governed by the law of the place where it was made.

*By the Oourt.*— Motion denied.