
    Heaton v. Eldridge & Higgins.
    
      Law of contracts — Sanction and interpretation from lazo of place of execution and of performance — Remedy under lazv of place where sought — Section 4199, Rev. Stat. — Statute of frauds— Agreement not to be performed zvitkin a year.
    
    1. Contracts receive their sanction from the law of the place where they are executed and to be performed, and their interpretation is controlled by that law; but the remedy upon the contract will be administered according to the law of the place where the remedy is sought.
    2. Section 4199, of the Revised Statutes, prescribes a rule of procedure to be observed by courts whose jurisdiction is invoked for the enforcement of contracts to which the statute relates; and the mode and measure of proof required by the statute are indispensable to the establishment of such agreements, wherever they may have been made.
    3. An agreement which, by its terms, is not to be performed within one year from the time it was made, will not be enforced in this state, unless the agreement, or some memorandum or note thereof is in writing, and signed by the party to be charged or by some person authorized by him to sign it, although the agreement was made in another state or country where it was competent to prove the same by parol evidence.
    (Decided March 9, 1897.)
    
      Error to the Circuit Court of Franklin county.
    Action was brought by Eliza Heaton against Elridge & Higgins, in the court of common pleas, on ' several promissory notes executed by the defendants, amounting in the aggregate to something over two thousand dollars.
    The answer set up a counter-claim for damages resulting from the breach of an oral agreement which, it was alleged, had been entered into by the parties, whereby the plaintiff agreed to employ the defendants as her agents for the sale of cigars of the plaintiff’s manufacture, at a stipulated compensation, and for a specified time extending beyond the period of one year. The agreement, it is averred, was made and to be performed in the state of Pennsylvania, where the law did not require contracts of that kind to be in writing, nor a written memorandum thereof to be signed by either party, nor forbid the bringing of an action thereon. The allegations of the answer were specifically denied by reply, and at the trial the plaintiff interposed the statute of frauds of this state to the evidence offered in support of them. The evidence offered to establish the agreement, which consisted of oral testimony only, was excluded from the consideration of the jury ; and there being no defense to the notes, judgment was rendered for the plaintiff for the amount due on them. The judgment was reversed by the circuit court, for error in the exclusion of the testimony; the court holding that, as the contract was valid where it was made, our statute was not an obstacle to its enforcement here; and whether that holding is correct is the only question brought before this court. '
    
      
      Holmes <& Haling and Harry H McMahon, for plaintiff in error.
    Brief of J. T. Holmes.
    The meaning of the statute is that the whole agreement, viz.: the promise, the parties, the subject-matter, the price or consideration, and the terms or conditions, must be shown by the written memorandum, or note itself, or by its reference to another writing. It is not a gratification of the statute that some, or even all but one, of the terms of a contract were stated in the written memorandum or notes. Smith v. Small, 82 Mo., 215. The writing must be a memorandum of the contract actually made, and if it is not so, parol evidence may show the fact. Browne’s Stat. of Frauds, Section 348; Benjamin’s Sales, Sections. 209, 270, 250 and 349; Reed’s Stat. of frauds, Section. 323. Ford v. Yates, 2 M. & G., 549 ; Williams v. Morris, 95 U. S. 456; Lesh v. Berlin, 78Mo-,391; lGreenleaf on evidence, section 268, 15th Ed.
    The question raised is whether the statute of frauds of the forum, or of the place of the contract, governs. Upon this question the authorities are somewhat discordant, but reason and principle sustain the contention that the lex fori governs. The leading case on this side was Leroux v. Brown, 12 Q. B., '801. Dotoner v. Cheese-borough, 36 Con., 45, is also a leading case. The Supreme Court of the United States approved the decisions in these cases, in Pritchard v. Norton, .106 U. S., 124; Creen v. Lewis, 26 U. C. Q. B.,625; Bain v. Whitehaven <& Furnis Junction Baikoay Co., 3 House of Lords cases; Bank v. Hemimoay, 31 Ohio St., 168; Pinney v. Cummings, 260hioSt., 46; 
      Whelan v. Kinsley, 26 Ohio St, 13;Miller et el v. Branham, 63 N. Y., 83; Clark v. Railway Co., 94 N. Y.. 317; Browne’s Stat. of Frauds, section 281; Toioesley v. Moore, 30 Ohio St., 184; Agnew on Statutes of Frauds, 178.
    This question'was squarely passed upon by this court in Reinheimer v. Carter, 31 Ohio St., 579. Nothing short of complete performance by one party within the year was held to be sufficient.
    It may be well remarked that it is a rule of very extensive application, that evidence by which a contract is to be enforced, modified or rescinded, must be such as is recognized by the lex fori. Latoson v. Pinckney, 8 Jones and S., 187; Story Confl. Laws sections 556, 697, quoted from 2 Rice on Ev., 1123.
    Section 262, 1 Green. Ev. shows that it is a statute of evidence and remedial in its nature.
    While the interpretation of a contract, as is elsewhere seen, is usually settled, so far as concerns its formal parts, by the lex loci contractus, and so far as its substance by the lex loci solutionis, the admissibility of the evidence by which the contract is to be enforced is to be adjudicated according to the lex fori, section 316, 1 Whart. Ev., citing British Lin, Go. v. Drummond, 10 B. & C. 903 ; Clark v. Mullido, 3 Moo. P. C., 299; Timbrey v. Vignier, 1 Bing. N. C. 151; Bain v. R. R. Co., 3 H. of L. cas., 19 ; Yates v. Thompson, 3 Cl. & F., 577; Brown v. Thornton, 6 Adolph. & E., 185; Donn v. Lippman, 5 Cl. & F., 11 ; Lawson v. Pinckney, 40 N. Y. Sup. Ct., 187 ; Whart. Confl. L. section 756 et seg; Story Confl. L. sections 556, 629.
    
      All of the contract must be found in the writings 1 Green Ev. section 268, supra. Agnew statute of Frauds, pp 64, 66. Wood on Frauds, Section 166.
    
      A right of action is one thing, the remedy thereon is quite another.
    We have no authority that would warrant the intrusion into the courts of Ohio of the rules or laws of procedure, or remedy, from any other state, or country, where our own laws provide a remedy.
    Such a thing is beyond the power of any other state, or country, and comity does not cover the point.
    We never violate our own laws to afford foreigners, or those who make foreign contracts, remedies against our own citizens, which we deny to our own citizens or domestic contractors.
    Equality of remedies in a state, even to the federal courts within it, was voiced in the Middlings Purifier Co. v. McGroarty, 136 U. S., 237.
    The principle is inconsistent with the spirit and genius of our complex system of government; it is impossible of application while the independence of our state judiciary and judicial system remains.
    The case of Scudder v. The Bank, 91 U. S. 406, is an important one on the doctrine involved and has been cited in numerous cases since it was decided; among others, in 106 U. S. 127, 130, 134; 15 Blatch. 85; 5 Dill. 484; 15 B’k Reg. 498; 22 Kas. 99; 35 Mich. 361; 125 Mass. 375; 28 Am. Rep. 242; 77 N. Y. 585; 33 Am. Rep. 680; 82 N. Y. 420; 37 Am. Rep. 579; 12 R. I. 266; 34 Am. Rep. 636; 109 U. S. 527 — 549. Wheaton on Conflict of Laws, section 401 Pritchard v. Norton, 106 U. S., 127; Canada Southern case, 109 U. S. 527; Denny v. Bannett, 128 U. S., 489 ; Kanaga v. Taylor, 7 Ohio St., 134; Marie v. Garrison, 13 Ann. N. C., 214'; Abbott by etc. v. Inskip, 29 Ohio St., 59; Town-sender. Hargraves, 118 Mass., 326.
    
      There is no question about the validity or interpretation of the alleged contract.
    It was made in Pennsylvania, and the laws of that state, by comity of Ohio, would settle both those questions if raised, because those laws become in the eye of comity a part of the contract, but the remedy, the mode of proof in case of suit does not become a part of the contract. Harrison-Baldwin Case, 5 C. C. Rep., 310; Bishop’s Law of Contracts, section 571; Still/nanv. White Rock Manufacturing Co., 3; Woodb. & M. 544; Blane v. Drummond, 1 Marsh, 68; Rleeman v. Collins, 9 Bush, 466; Neilv. The Bank, 50 Ohio St., 193; Boydv. Clark, 8 Fed., 849; Dennich v. Railroad Cb.,103U. S., 11; LeRoy v. Crowninshield, 2 Mason, 151; Wharton’s Conflict of Laws, 2nd Ed. section. 690.
    The text and the notes of Story on Conflict of Laws, 8th Ed., sections 262, 319, 576 and 577 touch and discuss the doctrine and its application. See last edition of Browne on the Statute of Frauds, section 136, citing: Lerouxv. Brown, 12 C. B. 801; Do/oner v. Chesebrough, 36 Conn. 39; Rleeman v. Collins, 9 Bush (Ky.) 460; Turnow v. Ilochstadter, 7 Hun (N. Y.) 80; Wilcox Silver Plate Co. v. Green 72 N. Y. 18; Dacosta v. Davis, 23 N. J. L. 319; Hunt v. Jones, 12 R. I. 265; Wilson v. Miller, 42 111. App. Ct. 332; Denny v. Williams, 5 Allen 1; Miller v. Wilson, 146 111. 523; Cochran v. Ward, 5 Ind. App. 89 ; Ruhe v. Buck, 124 Miss. 178; Hayden v. Stone, 13 R. I. 106.
    That the law of the forum governs as to remedies in the enforcement of contracts, see, also, Pickering v. Fisk, 6 Vt. 102; Commercial Nat. Bank v. Chicago etc. Ry. Co., 45 Wis. 172; Leiber v. Union Pac. Ry. Co., 49 Iowa, 688; Denny v. Fa/idkner, 22 Kan. 89; Green v. Van Buskirk, Wall, 307; Wharton on Conflict of Laws, section 121; Bank of United States v. DonnaUy, 8 Pet. 362; Laird v. Hodges, 26 Ark. 362; Gibson v. Sublett, 82 Ky. 596.
    The English notes to Leroux v. Brown embrace and refer to three of the still earlier eases, abstracted or quoted from, which recognize' and declare the doctrine ; The British Linen Qo. v. Drummond, 10 B. & C. 903, decided in 1830; De la Vega v. Vianna, 1 B. & Ad. 284, same year, decided by Lord Tenterden, and Huber v. Steiner, 2 Bing. N. C. 202,1835. Chancellor Kent’s 2 Comm. 463 and the notes, 13 ed.
    
      Selxoyn H. Owexi and Powell, Ricketts <& Black, for defendants in error.
    Brief of Selioyn N. Oioen.
    
    We can safely indorse nine-tenths of what is said by counsel for plaintiff in his very elaborate brief. If the statute of frauds involves only a question of procedure or evidence, as the learned counsel contends, he is wholly right. Our contention is that in this he is wholly wrong.
    Upon this proposition we cite Scudder v. Union National Bank, 91 U. S., 412: Alexander v. Penn. Go., 48 Ohio St., 636 ; Knoxolion v. Erie Rail-way, 19 Ohio St., 263; Irirnby v. Gignier, 1.Bingham’s New Cases, 151; Dao,osta~v. Davis, 24 N. J. L,, 319; Story Con. Law, sections. 24, 262.
    ' We think that it is apparent that this was not intended to create a simple rule of evidence, which we concede would be a matter of procedure, or one concerning’ the remedy, but that it is a provision which stands in the wajr of the party claiming under such contract, enforcing flts obligation against the other contracting party. It reaches to a .question of right and of redress. Story Con. Laws, section 26L
    This subject is illustrated by the eases which hold that where a contract is sought to be enforced in the forum of a state where such contracts are required to be solemnized by certain formalities, such as attesting witnesses or a re quirement that it be registered; but where no such requirement is provided by law of the state where it was made and was to be enforced, the same remedy may be had upon it as in the state of its creation. Anderson v. Doah, .10 Ired. Law, 295; Drewryv. Phillips, Busb. L. 81; Satterthioaite v. Doughty, 59 Am. Dec., 557.
    The fountain and inspiration of about allthepropositions found in the text books and in the cases which support the action of the trial court is the case Leroux v. Broion, 12 Com. B. 801.
    It was there held that a contract made in Prance, which by the law of that country was not required to be in writing, could not be enforced in the courts of England by reason of the pro vision of the statute of frauds of the latter country, which provided tha.t no action should be brought upon such a contract unless evidenced by writing.
    The strongest indorsement of Leroux v„ Broion, to be found in any of the text books, is found in Wharton’s Con. Law. section 690, so conspicuously cited (with the cases to support it) by counsel for plaintiff. Rleeman v. Collins, 9 Bush., 460; Wharton cites Doioner v. Chesbrough, 36 Conn.; Gibson v. Holland, L. R., 1 C. P. 1; Williams v. Wheeler, 8 C. B. N. S., 316.
    In this connection, and because it is most convenient, we direct the attention of the court to what is said of this case in Rowley v. Rowley, 1 *Q. B. Div., 461.
    The same writer (Wharton) also cites in support of his position, Turnow- v. LLockstader, 7 Hun., 80.
    This is all that is said in that case upon the subject. It is all our way, for it holds that the statute of frauds of the state where the contract is to be performed, is to prevail; not because it was a matter of procedure or because the lex fori was supreme. The same learned author cites in support of himself and Leroux v. Broion, Wilcox Go. v. Green, 72 N. Y., 18; Brinker v. Scheuman, 43 111, App., 662; Greeny. Lewis, 26 Q. B. Upper Canada, Wolf v. Burke, 19 Lawyer’s Rep., 792.
    The case of Leroux v. Broion is also criticised in Maxwell’s Interpretation of Statute, 2 ed. 180.
    The distinction made in Leroux v, Broion between the legal effect, in .statute of frauds in provisions that “noaction shall "be brought,” that “no contract shall be allowed to be good,” and that contracts shall be void, has proved capable of infinite mischief making.
    The comprehensive and far reaching fallacy of Leroux v. Brown, lies in its assumption that the statute of frauds, which provides that no action shall be brought upon such contract, unless, etc., is a mere rule of evidence relating to remedy and 'procedure, and that it does not at all affect the validity, the obligation or the contractual vitality of a contract. It is radically unlike the statute of limitations which a State may extend or curtail at pleasure, without being subjected to the imputation of imparing the obligation of the contract involved. It is conceded that the statute of limitations simply affects the remedy, and that the lex fori prevails; but that the statute of frauds concerns the obligation and vitality of a contract is declared by Von Huffman v. City of Quincy, 4 Wall (U. S.') 535, Edwards v. Kerzy 96 Ul S. 600, Terry v. Anderson, 95 U. S., 633; Wardlow v. Buzzard, 15 Rich., (N. C.)158; Griffin v. M. McKenzie, 50 Am. Dec., 391Hawkins v. Barney, 5 Pet. '451; Jackson v. Lanyphire, 3 Id. 280; $?/m v*. Waterson, 17 Wall. 596; Christmas v. Bussell, 5 Id. 290; Niwr(7¿s v. Crotoninshield, 4 Wheat. 122; Ludwig v. Steioart, 32 Mich. 27; Krone v. Krone, 37 Id. 308; Pereles v. Watertoton, 6 Biss. 79 ; isZari v. Bostwick, 14 Fla. 162 ; Lewis v. Harbin, 5 B, Mon. 564 ; Davidson v. Laiorence, 49 Ga. 335.”
    In the recent Indiana case of Cochrdn v. TPim#, 29 N. E., 795; the doctrine of Leroux v. Brown was expressly repudiated in an able and exhaustive opinion. Pickering v. Fiske, 6 Vt. 102.
    It was conceded by the trial court in sustaining the objection and granting the motion of plaintiff’s that the result was a hardship to the defendants, but it was said to be a hardship of the law. We submit that in doubtful questions, in questions of doubtful construction, a statute should be given that effect which will avoid hardships and work justice.
    It is but fair to the trial court to say that not one of the cases criticising Leroux v. Brown, and showing that statutes of frauds impair the obligation of pre-existing parol contracts was cited before the presiding judge.
    In Pennsjdvania, where our contract was made and was to be performed, it was not required to be in or evidenced by writing. It related to the form and solemnization which was necessary to give it effect. It was good and valid, and enforcible by either party to it, as either plaintiff or defendant.
    It seems idle to assert that these contracts are valid, but cannot be proved. What mockery is it to tell us: “Your contract is all right but you can’t sue on it. Your contract is valid, but you cant recover on it. Your contract is binding and creates a valid obligation, but you can’t enforce it in any court in this State for the reason that óur law enacts that no action shall be brought upon such a contract because you did not evidence it by writing. ” In what respect and to what extent would our case be bettered by calling our contract a valid one ? It is saying to us, in ghastly irony, “Your contract is valid down to the time when you seek to enforce it, then it suddenly becomes just as invalid as if it was an invalid contract.”
    We conclude by commending to this court the able and considerate opinion by Stewart, J., of the Circuit Court, VII. C. C., 501.
   Williams, J.

It is provided by section 4199, of the Revised Statutes, that: “No action shall be be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some person thereunto by him or her lawfully authorized.”

There is no doubt that the law of the state or country where a contract is executed and is to be performed, enters into and becomes a part of the contract, in the sense that its validity and obligatory effect are to be determined and controlled by that law ; and when valid there, the contract will be sustained everywhere, and accorded the interpretation required by the law of the place where made, when the law is properly brought to the attention of the court, unless the contract is against good morals, or contravenes a settled policy of the state or country in whose tribunals its enforcement is sought. The rule is founded . on the presumption that parties contract with reference to the laws to which they are subject at the time, and on the principles of comity prevailing among civilized nations. But it does not extend so far that the remedial system and methods of procedure established by one state or country will yield to those of another, nor that either will recognize or enforce those of the other. Each provides and alters at will its own rules and regulations in the administration of justice, to which those seeking redress in its courts must conform.

So that, the solution of the question presented involves the inquiry whether the provision of the statute above quoted appertains to the remedy on contracts to which it refers, or goes to their validity. We have found no expression on the question by this court, though it has been the subject of repeated adjudications both in England, and in several of the states. This provision of our statute is copied from the 4th section of the English Statute of Frauds; and in the case of Leroux v. Brown, 12 C. B. (74 Eng. C. L.), 801, where the precise question we have before us arose, it was held, that the section affected the remedy only, and was so applied as to defeat a recovery on a parol contract not to 'be performed within a year, which was made in France, where it was capable of proof by parol evidence. The case appears to have been thoroughly argued and considered, and the decision has since been adhered to by the English courts, and followed or cited with approbation by many American cases, and generally accepted by text writers, as the established law. Bain v. Whitehaven, 3 H. L. Cases, 1; Williams v. Wheeler, 8 C. B. N. S., 316; Madison v. Alderson, L. R. 8 App. Case, 467, 488; Pritchard v. Norton, 106 U. S., 127; Dower v. Cheesbrough, 36 Conn., 39; Townsend v. Hargrave, 118 Mass., 326; Bird v. Monroe, 66 Me., 337; Emeng v. Burbank, 163 Mass., 326; Wald’s Pallock on Contracts, 604-607, and notes. Anson on Contracts, p. 79; Brown on the Statute of Frauds, sections 136, lio a; Agnew on Statute of Frauds, 64-66; Wood on Statute of Frauds, section 166; Wharton on Conflict of Laws, section 690. And while the case of Leroux v. Brown has been criticized, those criticisms have been directed chiefly to the distinction drawn between the 4th and 17th sections of the statute, and the opinion expressed that the language of the latter section was such as to render invalid contracts within its provisions, for which reason it did not, as did section 4, constitute a regulation affecting the remedy. This distinction has not met with general approval, and has been repudiated in some of the latter cases, which hold, that the 17th section relates to the remedy, like section 4, and that the difference in the phraseology of the two sections is not such as to warrant a different interpretation in that respect, but that both sections prescribe rules of evidence which courts, where the 'remedy is sought, are required to observe. Townsend v. Hargrave, 118 Mass., 326; Bird v. Monroe, 66 Me., 337, 343; Pritchard v. Norton, 106 U. S., 127 ; Madison v. Alderson, L. R. 8 App. Cas., 467-488 ; Brown on the Statute of Frauds, section 136, note.

In Story on the Conflict of Laws, section 262, a different view of the question was taken, which has been adopted by some courts ; but the decided weight of authority is in accordance with the decision in Leroux v. Brown. The views of Judge Story were brought to the attention of the court in that case; and, in an edition of his work published after that case was decided, a section was added, in which it is said, that “the statute of frauds is, like the statute of limitations, a matter affecting the remedy merely; and if by the law of the forum no action can be maintained on a particular oral contract, if made in that country, the like rule will obtain as to a contract made elsewhere, although it was valid by the law,of the place where made.” Story on Conflict of Laws, 7 ed., section 576.

The question being an open one in this state, we are not disinclined to consider it on principle. The principle which must control its decision is the fundamental one that contracts receive their sanction and interpretation from the law of the place where they are made and to be performed; but the remedy upon them must, be taken and pursued according to the law of the place where they are sought to be enforced; and a decision of the question will be reached when it is ascertained within which of these rules the statute of frauds finds its appropriate place. The language of the statute under consideration, that no action shall be brought on any agreement therein mentioned, unless it, or “some memorandum or note thereof is in writing and signed by the party to be charged,’’ fairly imports that the agreement precedes the written memorandum, and may exist as a complete and valid agree ment, independent of the writing The memorandum, which is merely the evidence of the contract, may be made and signed after the completion of the agreement, and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute ; but it cannot be said that the letter constitutes the agreement; that was ■ made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement. And generally, when parties reduce their contracts to writing, the writing becomes the evidence of the agreement which they had previously entered into; and, having adopted that mode of evidencing their .agreement, the parties are not allowed to make proof of it by verbal testimony. This statute, in plain terms, forbids the maintenance of an action in any of the courts of this state, on any agreement which, by its terms, is not to be performed within a year, unless’ the action is supported by the required written evidence. The evidence by which a contract shall be proved is no part of the contract itself, but its admission or rejection becomes a part of the proceeding on the trial, where its competency and sufficiency must be determined. When the required evidence is lacking, the courts must refuse the enforcement of the contract. And it seems clear, that such a statutory regulation prescribing the mode or measure of proof necessary to maintain an action or defense, pertains to the remedy, and constitutes a part of the procedure of the forum in administering the remedy. The statute contains no exception or limitation on account of the place where the contract was entered into, or to be performed; but denies remedy on any contract of the kind designated by it, wherever made, which can not be established by the evidencce required.

That such was the intended scope of the statute is manifest when the purpose of its eactment is considered. Its well known design was, as declared in the English statute of frauds, after which ours, and those of most of the states are patterned, to prevent perjuries and fraudulent practices which were the outgrowth of the general admission of parol testimony to prove almost every kind of contract, and by means of which people were often stripped of their estates, and burdened with liabilities by testimony of alleged conversations and verbal declarations. The opportunities thus afforded for the perpetration of frauds, constituted temptations so strong for the commission of perjuries, that legislation excluding that kind of evidence in a large number of cases became, or was considered a necessity. These mischiefs, to remedy which was the chief aim of the statute, arose from, the admission of oral evidence in trials of actions and suits, and in the course of judicial procedure; and obviously, the opportunity and temptation for the commission of frauds and perjuries by admitting parol proof to establish the contracts with which the statute is concerned, are not any the less in eases where the agreement was made in another state or country, than in those where the agreement involved is' one, made in this state ; the mischief is the same in either case, and to allow the former to be so proved, would, that far at least, prevent the accomplishment of the salutary purposes of the statute. The statute is founded on considerations of public policy, and those of a moral nature, and declares a peremptory rule of procedure which the courts of this state are not at liberty to disregard in defference to the laws of any other state or country.

The agreement set up in the defendant’s answer could not, according to its terms, be performed within one year from the time it was made. An action upon it could be supported only by evidence which complied with the statutory requirements; and to be available as a counterclaim, which is a cross .action, such evidence was indispensable. It was not offered, and the court, we think, properly excluded the parol evidence relied on to prove the agreement. The judg’ment of the circuit must therefore be reversed, and that of the common pleas affirmed.

Judgment accordingly.  