
    No. XX.
    Huff, Administrator, etc., v. Folger, Lamb & Co
    (See .)
    
      Appeal from Austin.
    
    
      
      .—Huff v. Filger, Lamb & Co., p. 529.
      1 Interest is a creature of local law and governed by the law of the place where the contract is made. Trott v. Patton, Dal., 522; Burton v. Anderson, 1 T., 93; Andrews v. Hoxie, 5 T., 171; Davis v. Thorn, 6 T., 482; Willard v. Conduit, 10 T., 213; Bailey v. Heald, 17 T., 102 (holding that as to an indorser the place of indorsement governs); Whitlock v. Castro, 22 T., 108. Prior to Acts of January 18 and 20, 1840 (Gammel’s Laws of Texas, vol. 2, pp. 177 and 182), legal rate of interest was 5 per cent. Trott v. Patton, Dal., 522; Chevallier v. Buford, 1 T., 503; Davis v. Thorn, 6 T., 482. See Rev. Stats. 1895, arts. 3097-3107.
      2 Nature, validity, obligation, construction and interpretation of contracts are determined by the lex loci contractus, unless a different place is fixed by the parties for performance. Hill v. McDermott, Dal., 419; Tinnen v. Mathews, Dal., 491; Scott v. Maynard, Dal., 548; Gautier v. Franklin, 1 T., 732; Hays v. Cage, 2 T., 501; Snoddy v. Cage, 5 T., 106; Andrews v. Hoxie, 5 T., 171, 189; Campbell v. Wilson, 6 T., 379, 390; Raymond v. Holmes, 11 T., 54; Hall v. Harris, 11 T., 300, 305; McLeod v. Board, 30 T., 238; Cantu v. Bennett, 39 T., 303; Weider v. Maddox, 66 T., 372; Life Assn. v. Harris, 94 T., 25; Apollos v. Staniforth, 3 T. C. A., 502; Merrielles v. State Bank, 5 T. C. A., 483; Tilliard v. Hall, 11 T. C. A., 381; M. K. & T. Ry. Co. v. Thompson, 11 T. C. A., 658; M. P. Ry. Co. v. Harris, 1 App. C., sec. 1265. By place of performance. Ryan v. M. K. & T. Ry. Co., 65 T., 12; Seiders v. Life Assn., 93 T., 194; Life Assn. v. Harris, 94 T., 25; Good v. Caldwell, 11 T. C. A., 515; Applebaum v. Bates, 3 App. C., sec. 167. If to be partly performed in different states, intention of parties governs. Ryan v. M. K. & T. Ry. Co., 65 T., 13. Seems that marriage contracts are an exception to general rule of lex loci, contractus. Shreck v. Shreck, 32 T., 578. If subject of contract is land, the lex loci rei situs governs. A mortgage executed without the State, contrary to its laws or public policy, is void. Cantu v. Bennett, 39 T., 303; Fowler v. Bell, 90 T., 150. Contract valid under lex loci contractus is valid everywhere, unless in contravention of lex fori. If void under lex loci contractus, void everywhere. Andrews v. Hoxie, 5 T., 171, 189; Shelton v. Marshall, 16 T., 344; Ryan v. M. K. & T. Ry. Co., 65 T., 13; Weider v. Maddox, 66 T., 372; Fowler v. Bell, 90 T., 150; Tuckett v. Herdic, 5 T. C. A., 690; T. & P. Ry. Co. v. Davis, 2 App. C., sec. 191. If lex loci contractus is not alleged and proved, lex fori will be applied. Hill v. McDermott, Dal., 419; M. K. & T. Ry. Co. v. Cocreham, 10 T. C. A., 166. Whether a writ is wrongfully sued out, is determined by the laws of the State where it was obtained. Wiley v. Traiwick, 14 T., 662.
    
   BAYLOR, Judge.

Folger, Lamb & Co. sued Huff as the administrator of Samuel Sawyer, deceased, for the recovery of $1659.69, due by promissory note averred to have been lost during the revolution. They obtained a special verdict in their favor for the sum of $2499.35, being the amount of principal and interest for ten years at 5 per cent. The jury also found that the debt was contracted at New York, in the United States of America, and from the time of Huff’s last acknowledgment of the debt to the time of commencing suit, a little longer than three years. On this verdict judgment was rendered for the plaintiffs, which is sought to be reversed here on the ground that the verdict and judgment is for interest at 5 per cent when no interest should have been allowed, or if any it should have been the interest of the State of New York, one of the States, of the United States of America. Upon an examination of the facts of the case as certified to by the judge below, we find no proof therein contained showing what rate of interest is allowed by law in the State of New York, and as interest was computed by the jury at 5 per cent per annum for ten years, the supposed interest of this country, we think this was manifestly wrong. Where a contract is made in another country and with reference to that country, it' must be governed by the laws of the place where it is to have its effect, and foreign laws must be proved as facts. The district court could not therefore judicially know, unless from the finding of a jury on evidence submitted to them (which the record shows was not the case in this instance), what rate of interest is allowed in the State of New York; under such circumstances neither the court nor the jury were authorized to give the supposed rate of interest of this country. See Story’s Conflict of Laws, pp. 241, 291, and the authorities there cited. It is therefore the unanimous opinion of the court that the verdict be set aside, the judgment reversed, and the cause remanded for a new trial.

Reversed and remanded.  