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Bowman v. Price.

that the place of performance was identical with the place of delivery and the consummation of the contract; whereas in this case the place of execution, consummation, and delivery of the contract was in one State, and the place of payment was in another. The controlling facts of that case brought it clearly within the rule quoted by that court from Mr. Tiedeman to the effect that:

"It is not the law of the place where the contract is signed or executed, but the law of the place where the contract is consummated by delivery or otherwise, which governs the construction of the contract. If the contract is made in one place, and it is agreed to be performed in another place, the law of place of performance instead of the law loci contractus will govern the contract."

The conclusion of the court also accords with the rule which it quoted from Rorer on Interstate Law, in these words:

"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."

The court evidently had in mind in reaching its conclusion in the case what was quoted from Coghlan v. Railroad Co., 142 U. S., 101, 12 Sup. Ct., 150, 35 L. Ed., 951:

"It is a principle universally recognized that 'in every forum a contract is governed by the law with a view to which it was made.'"

And from the case of Hall v. Cordell, 142 U. S., 116, 12 Sup. Ct., 154, 35 L. Ed., 956:

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Bowman v. Price.

"But where there is nothing to show that the parties had in view, in respect to the execution of the contract, any other law that the law of the place of performance, law must determine the rights of the par

that ties."

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From the foregoing analysis of the Hubble Case, upon which the defendant relies, it will be seen that it is not directly in point and is entirely consistent with the contention made by the complainant. The only similarity which that case has to the complainant's contention is that the law of the State where the note was payable was applied. But it is dissimilar in that the contract was made and executed, signed, delivered, and consummated in a State different to that where it was made payable.

We must therefore resort to principle or to other cases to find the rule applicable to this case.

In Bank v. Mann, 94 Tenn., 17, 27 S. W., 1015, the note sued on showed that it was executed in Tennessee, and that it was payable in Tennessee, but it was held to be a North Carolina contract under the proof which showed that it was given as part of the consideration for a stock of furniture located in North Carolina, in which the payee and the maker of the note were jointly interested, and by which it was made to appear that the proposition of sale was submitted to the maker of the note in Knoxville, Tenn., accepted there by him, and the acceptance wired to the payee in North Carolina, and that after the invoice of the goods was taken at Asheville, N. C., the note was executed and delivered at that place, the parties using a blank note

Bowman v. Price.

which they had customarily used in their joint business at Knoxville, Tenn. Upon that state of facts this court, in announcing its conclusion, said:

"We are of opinion, from the record, that the contract is a North Carolina contract, and was so intended, and the fact that the note is dated Knoxville, and payable in Knoxville, arises simply from an accidental use of a blank note with these words in it, and not from a design to make it a Tennessee contract, or that it should be governed by Tennessee law."

While no rule is stated in this case in terms, it does appear that the real intention of the parties was controlling, and that this intention could be ascertained outside the language of the contract. Clearly the case does not sustain the defendant's contention as expressed in his brief that:

"The place of performance designated in the instrument itself fixes conclusively the law by which the validity of the instrument is governed.”

The case of Trabue v. Short, 5 Cold., 293, is cited in support of defendant's contention. In that case the note was made, executed, and delivered in the State of Kentucky, all the parties thereto being citizens of that State. It was indorsed by the payees and delivered to plaintiffs, and it was made payable at the office of the payees in New Orleans, La. The question in that case was between the holders of the note and the indorsers. The court, in determining what State law controlled as between the holders and indorsers, said in passing: "The law of Louisiana, without doubt, governs the contract of the makers."

Bowman v. Price.

But it held that the same law did not necessarily control in the case of the indorsers, and that the fact that the note was payable in Louisiana was not sufficient to make it a Louisiana contract, since the indorsement was made without any view of performance under the laws of Louisiana, and therefore the contract must be governed both upon principle and authority by the laws of Kentucky, where it was made. The case did not have under consideration the situation of the makers of the note, and it cannot be said that it is held therein that the mere fact that the note was payable in Louisiana by the makers governed the law of the contract; but, as the indorsement was made without reference to the place of performance, the laws of the place of the execution of the contract would govern as to the indorsers.

Both the complainant and the defendant in their briefs rely upon Senter v. Bowman, 5 Heisk., 14. In that case the note was dated in St. Louis, Mo., and it was shown that it was given for money advanced on cotton to be shipped to the payee of the note. The note bore ten per cent. interest, a lawful rate in Missouri, but unlawful in Tennessee. The trial judge instructed the jury in effect that the note would be usurious unless it showed upon its face that it was payable in St. Louis. This was held to be erroneous. The proof showed that, although the note was dated at St. Louis, and therefore presumably payable in St. Louis, yet in fact it was written, executed, and delivered in Tennessee. The court, assuming it was competent for the parties to contract for the rate of interest where the contract was to be performed, proceeded to inquire

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Bowman. v. Price.

whether the parties in this case made their contract to be performed in Missouri, and said:

"This is a question of intention, to be deduced from the language employed in the contract; and, in ascertaining the intention, we may look to the situation of the parties, the motives which induced the agreement, and the purposes and the object designed to be effected by it."

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The court found that Senter & Co., payees of the note, were cotton merchants in St. Louis, Mo., while Bowman, the maker of the note, was a farmer in Tennessee. merchant wanted the farmer's cotton shipped to it, and the farmer wanted to ship to the merchant his cotton. The farmer, not being ready to ship, wanted an advance made on the shipment. The merchant, in order to get the cotton, advanced the farmer $300, for which the note was executed. Although the contract was made in Tennessee, when it was reduced to writing it was dated in Missouri. The court said:

"Clearly it was made thus either to indicate that it was made with the view of evading the usury laws

of Tennessee, or that it was

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to be performed in Missouri. It is a sound rule of construction, that when a contract will bear two interpretations, one effecting a legal, and the other an illegal, object, we are rather to adopt the interpretation consistent with a legal than with an illegal one."

Other cases cited from Tennessee in the briefs shed no particular light upon the question at issue, except the case of Bolton v. Street, 3 Cold., 31.

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