
    CHARLES FAULKNER, and others, Plaintiffs, v. WILLIAM T. HART, and others, Defendants.
    I. Respondeat supebiob.
    1. EXCEPTION FROM THE RULE, OF AN EMPLOYER OOCUPYINGr A REPRESENTATIVE OR OFFICIAL CHARACTER; WHO DO NOT FALL WITHIN.
    
      (a) Trustees for holders of railroad mortgage bonds, in possession of and operating the railroad, ¿to not fall within.
    
    II. Common cabbiebs.
    1. Railroads.
    
      (a) Liability as common carriers after transportation to place of destination—when does it cease ?
    
    1. Question is to be detebmined by the law of the
    PLACE OF DELIYEBY.
    1. In a case where the shipper must be-deemed to know the usage of the carrier in delivering freight at the place of destination, and the law of that place in respect to it, and the inference from the evidence is in conformity with the view that the original contract called for, and the shipper contemplated a delivery in accordance with the usage and law prevailing at that place, the facts are not of a character to appeal very strongly to the courts of this State to give the parties a remedy in conflict with the law of that place, as defined by its courts.
    III. Massachusetts.
    1. COMMON CARRIERS; LIABILITY OF AS, WHEN THE LAW OF MASSACHUSETTS GOVERNS.
    
      (a) By the usage of railroad companies no freight was delivered between 5% p. m., on Saturday night until the next Monday morning. All freight remaining undelivered at p- M- Saturday was stored in the company’s freight warehouse, ready for delivery when called for on the following Monday.
    Held, undeb the law of Massachusetts, that although the train containing the goods had arrived on Saturday at %% p- M-, and the consignee was in attendance to receive them, yet as it did not arrive in time for the delivery of the goods to the consignee before 5% f. m. of that day, the company’s liability as common carrier ceased upon a discharge of the goods from the cars to the company’s freight warehouse.
    IV. Performance.
    1. LAW OF PLACE OF.
    (a) Governing matters connected with the performance of a contract made elsewhere.
    
      See Carrier, supra.
    
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided March 3, 1879.
    This' case comes before the court in a controversy submitted under section 1279 of the Code. The facts appear in the opinion.
    
      McDaniel,- Lummis & Souther, attorneys, and Everett P. Wheeler, of counsel, for plaintiffs, argued:
    I. There can be no question that the weight of authority, both in this country and in Europe, is that the words “ to deliver goods to a consignee,” in an agreement for the carriage of goods, do not mean to deposit them in a warehouse, wharf or station, without giving the consignee notice of their arrival and reasonable opportunity to take them away. Originally, common carriers undertook to deliver goods to the consignee at his warehouse or place of business. When steamships acquired the greater part of the carrying trade by sea, and railroads the greater part of it by land, it was found that to do this was inconsistent with the convenience of business, and the rule was so far modified as to allow a deposit, of the goods in a suitable wharf or warehouse, with notice to the consignee, and a reasonable opportunity given.to him to take them away, to take the place of a delivery to him personally (McAndrew v. Whitlock, 52 N. Y. 40; Ostrander v. Brown, 15 Johns. 39, Platt, J. ; 2 Kent's Com. 605 ; Richardson v. Goddard, 23 
      How. U. S. 38 ; Gatliff v. Bourne, 4 Bing. N. C. 314 ; 3 Mann. & Gr. 337; 11 Clarke & Fin. 45). To the same effect are Price v. Powell, 3 Comst. 322; Zinn v. N. J. Steamboat Co., 49 N. Y. 442 ; Sherman v. Hudson R. R. R., 64 Id. 254; The Sultana v. Chapman, 5 Wis. 454; Slade v. Payne, 14 La. Ann. 453; Dean v. Vac. caro, 2 Head, 489 ; The Peytona, 2 Curtis C. Ct. 21; Graves v. Hartford & N. Y. Co., 38 Conn. 143 ; Chicago & Rock Island R. R. v. Warren, 16 Ill. 502; Moses v. Boston & Maine R. R., 32 N. H. 523; The Tangier, 1 Clifford, 396; Redfield on Carriers, §§ 110, 111; Story on Bailments, § 545.
    II. It is contended by the defendants that the two Massachusetts decisions mentioned in the agreed statement establish that, there is a local law in Massachusetts which differs from that of the rest of the world, and that the contract in question is to be construed with reference to this local law. It is believed that neither of these positions is tenable. The Massachusetts cases do not purport to hold that there is any such local law. They are decisions in reference to a principle of general commercial law, and do not purport to be, and are not, in fact, based upon any local statute, usage or custom. Therefore, although due weight will undoubtedly be given to these decisions, they are not binding upon other courts (Swift v. Tyson, 16 Pet. 1; Meade v. Beale, Taney, 339 ; Austin v. Miller, 5 McLean, 189 ; The George, Olcott, 89 ; Pine Grove v. Talcott, 19 Wall. 666 ; Robinson v. Commercial Ins. Co., 3 Sumner, 220; Richardson v. Goddard, and The Tangier, supra). In like manner, the supreme court of Hew Hampshire, in an action for the nondelivery of goods, agreed to be transported to Boston, which were burned before delivery to the consignee, refuse to follow the Massachusetts cases (Moses v. Boston & Maine R. R., 32 N. H. 523). The language of Blackstone in his Commentaries, vol. 1, p. 273, and vol. 
      4, p, 67, is in point. Undoubtedly the books of reports of cases are presumptive evidence of the law. But as Benedict; in his work on Admiralty, section 313, b, well says : “They are, however, evidence which may be rebutted, and when successfully rebutted their evidence cannot prevail. No number of erroneous decisions can furnish sufficient reason for deciding contrary to law. When a decision has been followed, without hesitation or consideration, by many others, it is but one decision, of which the others are but echoes. The question always remains, what is the law, and decisions are to be weighed, not counted.” So also, 1 Kent Com. 477: “It is probable that the records of many courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.”
    III. The Massachusetts cases referred to in the agreed case are not sufficient for the defendants’ purpose, even if they constituted a rule of decision for this court. It is agreed in the statement, that the Norwich and New York Transportation Company, at New York receipted for the cases in good order, to be transported to Boston and delivered to the plaintiffs’ Arm in Boston. In the cases of Bice v. Hart, and of the Norway Plains Company v. Boston and Maine Bail-road, it did. not appear that there was an express agreement to deliver to the consignee. C. J. Shaw limits the latter decision to a case where there is no special agreement to deliver to the consignee. The case of Stevens v. Boston & Maine Railroad (1 Gray, 277), shows that where there is an actual refusal by the common carrier to deliver, the doctrine in the Norway Plains case is not applied, even by the local courts of that State. It may be claimed that the case of Rice v. Hart, mentioned in the agreed statement, overrules this last mentioned decision. But as the contract in suit was made before the decision in Richardson v. Hart, this court will not give to that a retroactive effect so as to change the character of a previous contract (Harris v. Jex, 55 N. Y. 421, and cases cited).
    IV. The position taken by the defendants involves another fallacy, to wit: That when a contract is made in one State to be performed partly in that State and partly in other States, the construction of the language used in the contract is always to be determined by the law of the State where the performance is to terminate. It is, however, submitted that the decision in the case of a contract made in one State to be performed in another depends upon the question, was the contract made in reference to the laws of the place of performance ? (Donnelly v. Corbett, 3 Seld. 500 ; Baldwin v. Hale, 1 Wall. 223; Dyke v. Erie Railway Co., 45 N. Y. 113.) How it is not to be supposed that parties contracting in one State know or contract with reference to peculiar and unique decisions of another State as to what the law merchant is. As already shown, that is presumed to be the same everywhere. A contract made in Hew York, which uses the words “to deliver to Faulkner, Page & Co.” is not to be construed as to the meaning of the word “deliver,” with reference to certain decisions of the local Massachusetts courts. It would seem almost too clear for argument, that when two men in the State of Hew York use the word “ deliver,” they use it in the sense in which people in that State commonly understand it, and not in the sense in which people in Boston may understand it. The very decisions cited for the defendants admit this. They maintain that in the absence of such a contract the carrier is not bound to deliver to the consignee, but performs his whole duty as carrier by delivering his goods, not to the consignee, but to him-
    
      self as warehouseman. But they never held that if he does contract to deliver to the consignee, he is not bound by his contract. The legislature of the State of Massachusetts has no' power to make a law impairing the obligation of a contract to deliver to the consignee; much less can their local courts impair the obligation of such a contract, and say that it does not mean what it says, but that it means something else quite different (Gelpcke v. Dubuque, 1 Wall. 175, 206 ; Olcott v. Fond du Lac, 16 Id. 678). The presumption is, in the absence of evidence to the contrary, that the words in the contract were used by the parties in their ordinary meaning, and not in a special, local and technical sense. Indeed, it is held by the courts of this State that even a local usage to the contrary will not avail in an action against a carrier on an agreement to deliver to the consignee (Ostrander v. Brown, 15 Johns. 39). And the authorities are uniform that a local usage of any sort is not valid in opposition to the express language of a contract between parties, and that if the language of the contract is explicit, it cannot be varied or contradicted by parol evidence, or a meaning given to the contract different from that called for by its terms (Collender v. Dinsmore, 55 N. Y. 200; 1 Greenl. Evid. § 295 ; Broom Legal Maxims, 477).
    Y. The regulation of the defendants, closing their freight station at half-past five on Saturday, was unreasonable. If they would terminate their liability as common carriers, they certainly should afford to a consignee present to receive the goods an opportunity to take them away; especially on Saturday. The validity of this regulation does not appear to have been considered by the Massachusetts court. But it is only reasonable by-laws and regulations that are valid (Elwood v. Bullock, 6 Ad. & Ell. N. S. 383; Barney v. Steamboat Co., 67 N. Y. 301; Hibbard v. New York Central R. R., 16 Id. 455).
    
      
      Weeks & Forster, attorneys, and George II. Forster with G. W. Baldwin, of counsel, for defendants, on the questions considered by the court, argued :—I.
    As trustees for the bondholders of the insolvent Boston, Hartford and Erie Railroad Company, no negligence can be imputed to defendants. They are running and operating the road as such trustees. They have not assumed to act other than as such trustees, and have not held themselves out as carriers of freight other than as such trustees. No personal neglect is imputed to them, either in the selection of agents or in the performance of any duty. They are, therefore, not liable to this claim of the plaintiffs. The doctrine of respondeat superior does not apply to cases where the employer occupies a representative or official character, and has not individual or personal interest in the property or business in which the subordinate is employed (Cardot v. Barney, 63 N. Y. 281; Lane v. Cotton, 1 Ld. Mansf. 646 ; S. C., 1 Salk. 17; Whitfield v. Lord Ledespencer, Cowp. 754; Hall v. Smith, 2 Bing. 156 ; Duncan v. Findalter, 6 Cl. & Fin. 894). The principle was recognized in Bush v. Steinman (1 B. & P. 404), and the defendant held liable for the reason that the work was carried on for his. benefit.
    II. By the law of Massachusetts proprietors of a railroad, who transport goods over their road for hire, and deposit them in their warehouse without additional charge, until the owner or consignee has a reasonable time to take them away, are not liable as common carriers for the loss of the goods by fire, without negligence or default on their part, after the goods are unladen from the cars, and placed in the warehouse, but are liable as warehousemen only for want of ordinary care, although the owner or consignee has no opportunity to take the goods away before the fire. The proprietors of a railroad are not obliged to give notice to the consignee of the arrival of goods transported by them, in order to exonerate themselves from their liability as common carriers. By the law of the place of delivery, therefore, the liability of the defendants, if common carriers, became merely that of ware-housemen, as soon as the goods had been deposited in the freight depot, and delivery from themselves as "common carriers to themselves as keepers for hire, discharged their responsibility as common carriers (Norway Plains Company v. Boston & Maine R. R., 1 Gray, 263; Rice v. Hart, 118 Mass. 201). The rule thus established, after argument by eminent counsel and upon much consideration, and supported by great force of reasoning, has ever since been considered settled law in that commonwealth (Sessions v. Western R. R., 16 Gray, 132 ; Rice v. Boston & Worcester R. R., 98 Mass. 312 ; Miller v. Mansfield, 112 Id. 260 ; Stowe v. New York, Boston & Providence R. R., 113 Id. 521). And it has been recognized in the ablest decisions, which have taken a different view of the subject, as a rule of a definite and practicable character and of easy application (Moses v. Boston & Maine R. R., 32 N. H. 523, 543 ; Graves v. Hartford & New York Steamboat Co., 38 Conn. 143, 151). This case does not require us to consider whether the rule should extend to a case in which the goods have not arrived at their final destination, but are held by one railroad corporation in a warehouse at the end of its own line, with the duty of forwarding them by another carrier to their ultimate destination, as to which the judg-' ments of the supreme court of the United States in Railroad Co. v. Manufacturing Co. (16 Wall. 318), and of the court of appeals of New York, in McDonald v. Western Railroad (34 N. Y. 497), seem to be in conflict with the opinions expressed in Denny v. New York Central Railroad (13 Gray, 481, 487), and Judson v. Western Railroad (4 Allen, 520, 523). The other cases cited for the plaintiffs, in the supreme court of the United States, the house of lords, the court of appeals of New York, and this court, were cases of common carriers by sea, who have not the same means of warehousing goods at their destination, and are not therefore within the rule which governs railroad corporations (see also Fenner v. Buffalo & State Line R. R. Co., 44 N. Y. 505, 511; Henshaw v. Rowland, 54 Id, 242 ; Pelton v. Rensselaer & Saratoga R. R. Co., 54 Id. 214).
    III. Inasmuch as delivery of the goods was to be made in Boston, where the loss occurred, the law of Massachusetts should control the rights of the parties with respect to such delivery. This rule has been applied in several carefully considered cases where the facts are analogous to the facts here (Barber v. Wheeler, 6 Am. R. 434; Grey v. Jackson, 12 Id. 1 ; Knowlton v. Erie R. R., 19 Ohio St. 260 ; S. C., 2 Am. R. 395 ; M. & St. P. R. R. v. Smith [Ills. S. C., 1875], 7 Chic. Leg. News, 174).
    IV. There is no hardship in applying this doctrine to the case.under consideration. The plaintiffs were both consignors and consignees ; as consignees, doing business in Boston, they must be presumed to know the laws of the State, of which three of them were, and for upwards of ten years had been residents and citizens, and that the goods were at their risk when discharged from the cars upon the freight platform. As this risk was an insurable one they might, if they had chosen, have obtained complete protection. Suppose, on the other hand, the defendants had obtained insurance on these goods against their liabilities as carriers, they could have recovered nothing from the underwriters, because the goods were destroyed after their liability as carriers had ceased (Norway Plains Co. v. B. M. R. R., 1 Gray, 263; Rice v. Hart, 118 Mass. 201). If the plaintiffs desired that the goods in question should be disposed of or delivered, upon their arrival in Boston, in a manner unusual to the course of business there, they should have given special directions to that end (Van Santvoord v. St. John, 6 Hill, 160 ; Rawson v. Holland, 59 N. Y. 618).
    V. The duty imposed on' the defendants, if common carriers, was to carry and deliver. What other construction can be put upon a contract to deliver than to deliver in accordance with the laws and usage of the place of delivery ? It is well settled that a mere usage, which is matter of evidence, is, when proven, to control the question of delivery, because such usage takes the place of general law, and the presumption therefore arises that it is in view of parties who contract about its subject matter (Angell on Carriers, § 301; McMasters v. Penn. R. R., 69 Penn. St. 374). But in the case under consideration the usage and the general law, as expounded by the courts, are in accordance, and the goods were delivered in strict conformity therewith. The contention of the defendants is that they are not liable as common carriers, because their contract as carriers had been fully performed, and “matters connected with the performance are regulated by the law prevailing at the place of performance” (Scudder v. Union Bank, 1 Otto [91 U. S.] 413). Suppose there had been a positive statute of the State of Massachusetts, enacting that the liability of a carrier should cease when the goods had been discharged at the end of the route, into a suitable warehouse, or the charter of the company had contained a special provision to the same effect. The effect of such provision in the charter of a railroad company was considered in Railroad Co. v. Manufacturing Co. (16 Wall. 326); and although it was held that the exemption did not apply to the circumstances of that case, it appears to be conceded that the liability of the carrier would have been determined thereby, if the goods in question had reached their final destination (and see Mills v. Mich. Centr. R. R., 45 N. Y. 626). Suppose, on the other hand, there had been a positive statute of the State of New York, enacting that the liability of a carrier should, in ail cases, continue until the goods entrusted to him had been actually delivered to the consignee, such statute liability would be limited to defaults occurring within the State. Whitford v. Panama R. R. (23 N. Y. 465), where it was held that a statute giving an action for damages resulting from negligence did not apply where the injury was committed in a foreign country, even though the negligence was that of a corporation chartered by the State of New York, and which made the contract in such State for the conveyance of the injured party over its road. This is not a case where, in answer to a suit brought in one jurisdiction upon a liability which occurred in another, the defendant attempts to avail himself of the laws of the place where the liability occurred, which abridge or limit the remedy therefor. There is no question of the extent of remedy here. It is the liability which is denied. The case, therefore, is taken out of the range of the numerous decisions, which hold that as to the remedies for contracts broken the lex fori is to govern, and that statutes of other States, which limit the remedies, either in time or amount, have no application.
    VI. The plaintiffs cannot claim here that the defendants were carriers between New York and Boston. It is not true in point of fact. Their obligations as carriers began when they received the goods from the Norwich & Worcester Railroad Company. But suppose the plaintiffs’ claim to be true. The case would then fall within the rule, which is very succinctly stated, with its limitations, in Dyke v. Erie Railway Co. (45 N. Y. 113), that “the lex loci contractus determines the nature, validity, obligation and legal effect of the contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other State or government, as when it is to be performed in another place, and then, in conformity to the' presumed intentions of the parties, the law of the place of performance furnishes the rule of interpretation.” Still more in point is Story on Contracts, section 655, where it is said that “if a contract is to be performed partly in one country and partly in another country it has a double operation, and each portion is to be interpreted according to the laws of the country where- it is to be performed ” (see also 1 Chitty on Cont. [11 ed. 130] ; Scudder v. Union Nat. Bank, 1 Otto, 413; M. & St. P. R. R. v. Smith [Ill. S. C., 1875], 7 Chic. Leg. News, 174; Pomeroy v. Ainsworth, 22 Barb. 118; Andrews v. Pond; 13 Pet. 78; Kessler v. N. Y. C. & H. R. R. Co., 61 N. Y. 538 ; Pope v. Nickerson, 3 Story, 474, 485 ; Addison Cont. § 240).
    VII. The general obligation created by the law of the place of delivery, in respect to the mode of delivery by a carrier controls. The plaintiffs were bound to know such law and bound by it, and the defendants are entitled to its protection. It was clearly recognized in 0Ranson v. Holland (59 N. Y. 613), that such a law would protect the carrier, and that when by the law of the place of delivery the carrier had the right to store the goods, then the nature of the bailment changes, and he is relieved from the stringent responsibility originally assumed, and the liability of a warehouseman is substituted (Rawson v. Holland, 59 N. Y. 615, 6, cites Van Santvoord v. St. John, 6 Hill, 157; Goold v. Chapin, 20 N. Y. 259; McDonald v. Western R. R. Co., 34 Id. 497; Root v. Great Western R. R. Co., 45 Id. 524; Mills v. Michigan Central R. R. Co., Id. 622 ; Nutting v. Connecticut River R. R. Co., 1 Gray, 502 ; see also, Pelton v. Rensselaer & Saratoga R. R. Co., 54 N. Y. 214). The inference from the opinion of the court in Shelton v. Merchants Dispatch Trans. Co. (59 N. Y. 264), is that if the law of Illinois, the place of the fire, had been proved in that case, it would have controlled. Here the law of Massachusetts appears from the case, and should control.
   By the Court.—Curtis, Ch. J.

This controversy is presented in a case agreed upon by the parties and submitted without action.

The plaintiffs claim that the defendants are liable as common carriers, for a failure to deliver to them ten cases of merchandise, Sent by the plaintiffs’ firm in New York to the plaintiffs’ firm in Boston. This merchandise arrived in Boston on Saturday, at 3M p. m. but not in time to be delivered to the plaintiffs’ messenger before half-past five o’clock on Saturday afternoon, at which hour the yard and freight-station of the defendants’ road, as well as those of all other railroads in Boston, are closed for the delivery of freight until the ensuing Monday. The merchandise in question was discharged from the cars into the defendants’ warehouse on Saturday afternoon, too late for delivery that day, and the same night they were destroyed by fire, without fault or neglect on the defendants’ part.

The facts presented in the case disclose no reason for exonerating the defendants from liability as common carriers, on the ground that they were trustees or public officers of an insolvent corporation, and as such acting in a different capacity than that of carriers of freight. They were in possession and operating a railroad, from Putnam, in Connecticut, to Boston, as trustees for the holders of the mortgage bonds of The Boston, Hartford and Erie Railroad Company, the terminal road over which this merchandise was forwarded. They received the goods to transport to Boston from Putnam as carriers of freight.

The cases of Norway Plains Company v. Boston and Maine Railroad Co. (1 Gray, 263), and Rice v. Hart (118 Mass. 201), referred to in the stipulation as evidence of the law of Massachusetts, indicate a careful-consideration of the nature of the liability which attaches upon a state of facts such as is submitted to us in the agreed statement. •

The last case above mentioned was similar to the present, arising upon a like state of facts, and the action was there brought to recover against these same defendants, for a loss of goods arriving at the same time and transferred to the defendants’ freight-house that afternoon" and destroyed by the same fire. '

In that case, as in this, the agent of the consignee was at the station after the arrival of the goods, prepared to receive them. In that case it was held that the liability of the railroad corporation as a carrier ended before the loss of the goods. The decisions referred to in the stipulation as evidence of the law of Massachusetts hold that the railroad company, upon the state of facts presented here, are responsible as common carriers, until the goods are removed from the cars and placed on the platform; that if, on account of their arrival at night, or at any other time, when by the .usage and course of business the doors of the merchandise depot or warehouse are closed, or for any other cause they cannot be delivered, or if for any reason the consignee is not there to receive them, it becomes the duty of the company to store them safely, ready to be delivered, and to deliver them, when called for by the parties entitled to receive them; and that for the performance of these duties after the delivery of the goods from the cars, the company is liable as a warehouseman for hire.. The company is thus held, after it has completed its transportation, to become a warehouseman, as a matter of law, and to have ceased to be a common carrier. This appearing to be the law in Massachusetts and recognized as such by its courts would be a bar to the plaintiffs’ recovery if the question was before one of the tribunals of that State.

It is therefore for us to consider, to what extent, if any, the plaintiffs’ remedy is affected by presenting his claim in a court of this State. Hone of the parties are residents here ; the defendants and all of the plaintiffs but one, reside in Boston, and have for many years. The plaintiffs carry on business there, and it is but fair to presume that they knew the practice of the railway companies there, in respect to closing their deliveries of freight from the platform, from half-past five o’clock on Saturday evening, until the following Monday morning, and storing it in the interval in their warehouses, and they must also be presumed to know the law of their residence in regard to such action. The plaintiffs’ contract was not made with these defendants, but with the Horwich and Hew York Transportation Company, in connection with which and another company, the defendants participated in forming a connected line of transportation from Hew York to Boston. The plaintiffs could have selected a different time for the shipping and arrival of their goods, if they had seen fit, or they could have protected themselves by contract with the carrier, or by insurance against loss while in the freight-house. Ho objection is shown to have been made by them, to the placing of their goods in defendants’ warehouse.

Under these circumstances the question arises, whether the remedy of the plaintiffs is not governed by the law of Massachusetts, the place where the contract was to be ultimately performed. The facts above referred to are not of a character to appeal very strongly to the interposition of a court in this State, to give the parties a remedy in conflict with the law of Massachusetts as defined by its courts. In this case, it must be deemed, that the plaintiff knew both the usage of the railway companies delivering freight in Boston, and the law of Massachusetts in respéct to it, and while every feature of the case, and every fairly derived inference from it, is in conformity with the view that the original contract called for, and that- the plaintiffs therein contemplated a delivery to their Boston firm, in accordance with the usage and l'aw there prevailing, there is nothing that shows or expresses that the delivery was to be otherwise.

It is almost a mátter of necessity, that the law at the place of the final performance of the carrier’s contract should govern in regard to the delivery of goods. In the great commercial centers, where railway freights are delivered from the various States and provinces, it is obvious that there must be some uniform rule at the place of delivery governing such deliveries. To be guided by' the various laws of the localities from whence the goods are sent, would be attended with great inconveniences, even if it was possible. The doctrine of the federal courts indicates that matters connected with the performance of a contract are to be regulated by the law prevailing at the place of performance (Scudder v. Union Nat. Bank, 1 Otto [91 U. S.] 406).

In this State the same principle is sustained, in Whitford v. Panama Railroad Company (23 N. Y. 474, 472), where, in affirming a decision of this court, the question is carefully considered.

The defendants should have judgment in their favor under the submission.

Sedgwick and Freedman, JJ., concurred.  