
    (109 Tex. 414)
    LAMB v. HARDY.
    (No. 2532.)
    (Supreme Court of Texas.
    April 23, 1919.)
    1. Courts <®=o95(l) — Law Applicable — Foreign States.
    The foreign court is the only tribunal competent to decide upon either the common' or statute law of its own state.
    2. Evidence <®=>80(1) — Presumption—Laws of Another State.
    In an action in Texas against blank indorser of notes executed,- indorsed, and payable in the territory of Oklahoma, defendant, to defeat recovery upon the ground of the Oklahoma territory law, must prove and allege that the law as construed in Oklahoma territory was different from the law in Texas.
    3. Bills and Notes @=»160 — Negotiability —Peovisio-n por Attorney’s Pees.
    Provision for payment of attorney’s fees does not render note nonnegotiable.
    4. Courts <®=>95(1) — Rules op Decision — Decisions op Courts op United States Territory.
    Decisions of the Supreme Court of state of Oklahoma are not declaratory of the common law as it existed in Oklahoma territory, since the Supreme and Circuit Courts of the United States possessed revisory control over the judgments of the Supreme Court of Oklahoma territory.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by C. R. Hardy against W. E. Lamb. Judgment for defendant was reversed by Court of Civil Appeals (152 S. W. 650), and defendant brings error.
    Affirmed.
    J. B. Reynolds, of Wheeler, for plaintiff in error.
    Templeton & Templeton, of Wellington, and Chas. L. Black, of Austin, for defendant in error.
   GREENWOOD, J.

This was a suit, brought by defendant in error to recover $1,-506 of plaintiff in error, as indorser in blank of three promissory notes, which were executed and indorsed in the territory of Oklahoma, where they were payable. Plaintiff in error defended the suit on the ground that, under the laws of Oklahoma territory, the blank indorsement of the notes had no other effect than to transfer the title thereto to the indorsee and did not obligate the endorser to pay same.

No evidence was introduced to prove the laws of Oklahoma territory, except that plaintiff in error offered in evidence the opinion in the case of Pattee Plow Co. v. Beard, wherein it is held that the provision in a promissory note for attorney’s fees renders same nonnegotiable, and that the in-dorsement of a nonnegotiable note operates merely to transfer a legal and equitable title thereto, without guaranty of payment, and except that plaintiff in error also offered in evidence the opinion of the Supreme Court of the state of Oklahoma, reported in Clowers et al. v. Snowden et al., 21 Okl. 476, 96 Pac. 596, wherein it is held that a promissory note is not negotiable when it contains a provision for the payment of attorney’s fees. There is nothing in the evidence to show by what court the ease of Pattee Plow Co. v. Beard was decided, nor where the case is reported.

Since the notes sued on, bearing the blank indorsement of plaintiff in error, were executed in Oklahoma territory and were made payable and indorsed there, and since they provided for 10 per cent, attorney’s fees, upon suit being instituted thereon, it is the contention of plaintiff in error that by the introduction in evidence of the opinions above mentioned he established that he was subject to no liability as indorser, and this contention was sustained by the trial court, who rendered judgment denying a recovery to defendant in error.

On appeal, this judgment was reversed and judgment rendered for defendant in error, upon the ground that the courts in Texas will not apply the laws of a sister state, in the enforcement of obligations of parties to promissory notes, executed and payable in the sister state, because such laws have not been embodied in statutes and have simply dealt with questions of commercial law. 152 S. W. 650. In this conclusion, the honorable Court of Civil Appeals followed certain expressions in the opinions of the Courts of Civil Appeal in the cases of Alexander v. Bank of Lebanon, 19 Tex. Civ. App. 620, 47 S. W. 840, and Third National Bank of Springfield v. National Bank of Commerce, 139 S. W. 665.

We think there was error in the conclusion of the Court of Civil Appeals that the law of Oklahoma territory, if properly proven, ought not to control in determining the liability arising from the blank indorsements in that territory of the notes sued on. In the case of National Bank v. Kenney, 98 Tex. 301, 83 S. W. 371, this court announced :

“From what has been said it would seem that in order to defeat this suit the defendant bank must show that the law of Missouri as to commercial paper is different from the law of Texas. In order to do so, it must plead the law of that state and prove it as pleaded.”

Wharton on Conflict of Laws, says:

“In a few instances the state courts have assumed the same right to determine general questions of common law according to the precedents prevailing in the forum, without reference to the decisions of the courts of the otate in which the contract or other transaction has its situs, the law of which, if statutory, would coneededly govern. As a rule, however, the state courts tacitly proceed upon the assumption that the rules of law prevailing in another state or country, where the transaction had its situs, are equally binding, whether embodied in the decisions of its courts, or in its statutes; and some of the state courts have expressly repudiated the doctrine that questions of general commercial, or general common, law are to be determined in accordance with the views prevailing at the forum, without reference to those prevailing at the situs of the contract or transaction in question.” 2 Wharton on Conflict of Laws, pp. 048, 949.

It seems to us that this court has declined to make questions of general commercial or common law exceptions to the general rule that it will determine and enforce substantive contract rights and obligations in accordance with the law of the place where the contract was made and was to be performed. Bank v. Kenney, 98 Tex. 293, 83 S. W. 368; M., K. & T. Ry. Co. v. Wise, 101 Tex. 459, 109 S. W. 112. And we are in entire agreement with the view expressed in Midland Steel Co. v. Citizens’ Nat. Bank, 34 Ind. App. 107, 72 N. E. 290, as follows:

“The foreign court is the only tribunal competent to decide upon the common or the statute law of its own state, and we fail to see any reason for permitting such decisions to be questioned in the one case, and not permitting them to be questioned in the other.”

It is unquestionable that under the law of Texas the blank indorsements of the notes in suit would obligate the indorser to pay same. And it is likewise unquestionable that it was incumbent on plaintiff in error, if he would defeat a recovery on the notes, to prove, as well as allege, that the law, as construed in Oklahoma territory, was different from the law in Texas. Blethen v. Bonner, 93 Tex. 143, 53 S. W. 1016. We do not believe that there is sufficient evidence in this record to meet the burden which the law imposed on plaintiff in error.

The decisions offered to support the pleading that the law of Oklahoma territory imposed on plaintiff in error no obligation to pay the notes were decisions of the Supreme Court of the state of Oklahoma. We are unable to see how those decisions can he treated as declaratory of the common law in Oklahoma territory. Oklahoma was a sovereign state when the decisions were rendered. The Supreme Court of the United States has fixed the status of territories as “mere dependencies of the United States,” and has declared that—

“Their people do not constitute a sovereign power. All political authority exercised therein is derived from the general government.” Snow v. U. S., 18 Wall. 319, 320 (21 L. Ed. 784).

The Supreme Court of the United States and the United States Circuit Court of Appeals possessed revisory control over the judgments of the Supreme Court of Oklahoma territory. As declared by Black on Judicial Precedents, on page 378;

“Applicable decisions of the Supreme Court of the United States are imperatively binding on the courts of a territory, not only when rendered in cases arising under the Constitution or laws of the United States, but also when they have to do with questions growing out of the common law, the law merchant, or the general principles of jurisprudence.”

Indian Territory formerly occupied the same sort of relation to the federal courts as did Oklahoma territory, and, in a case involving inquiry into the law of Indian Territory, the court, per Justice Williams, in M., K. & T. Ry. Co. v. Wise, 101 Tex. 465, 109 S. W. 114, said:

“It follows that, as the ultimate determination of cases arising in the Indian Territory may be made by the Supreme Court of the United States, the rulings of that court as to what are the applicable rules of the common law are to be accepted as the highest evidence of the common law of the territory.”

Again, in St. L. & S. F. R. Co. v. Summers, 51 Tex. Civ. App. 136, 111 S. W. 213, it is stated:

“As to the construction put upon the common law by the courts of the Indian Territory, we must look to the decisions of the Supreme and appellate courts of the United States, which courts have the ultimate determination of cases tried in the courts of that territory.”

There appears to be no decision applicable to this controversy by the Supreme Court of the United States, and no decision was introduced from the Supreme Court of Oklahoma territory. The United States Circuit Court of Appeals for the Eighth Circuit, which had certain supervisory, appellate jurisdiction over the judgments of the Supreme Court of Oklahoma territory, had determined, when these notes were indorsed, in an elaborate opinion of Judge Amidon, concurred in by Judge Sanborn and by Judge Van Devanter, now of the Supreme Court of the United States, that a provision for attorney’s fees does not render a note nonnegotiable. Cudahy Packing Co. v. Bank, 134 Fed. 538, 67 C. C. A. 662. Thus, it appears that, in so far, as any appellate court with jurisdiction over the territory of Oklahoma has declared the law governing this controversy, such declaration is in line with the law of Texas, as announced by Judge Gaines, in Mill Co. v. Sinker, 74 Tex. 52, 11 S. W. 1057, as follows:

“As to the effect of a stipulation for the payment of attorney fees in a promissory note there have been various rulings in the courts of last resort in this country. That the stipulation does not effect the validity of the note is settled in this court (Miner v. Bank, 63 Tex. 559; Roberts v. Palmore, 41 Tex. 617); but whether it destroys its negotiability or not seems not to have been determined with us. The courts of several of the states have held that it does not, and this appears to us the better opinion. The agreement to pay the expense of collection in the event the note is not paid at maturity does not change the fact that the sum to be paid when clue is fixed and unconditional. Costs are always recoverable when suit has to be brought, and this is a contingent liability. The stipulation for attorney fees is no more.”

As plaintiff in error failed to discharge the burden of establishing that the law was different from that of Texas, in Oklahoma territory, we conclude that the Court of Civil Appeals rendered the correct judgment in holding plaintiff in error liable as indorser of tlie notes, and that judgment is affirmed. 
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