
    Carl Voigt et al., Resp’ts, v. Martha Brown, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    1. Husband and wife—Promissory note—Made by wife, dated and payable in Connecticut, discounted in New York—Liability of wife.
    The defendant and her husband were domiciled in the State of New York; he went into Connecticut and there signed her name to an accommodation note, dated and payable in Connecticut to the order of a firm of which he was a partner. He was authorized by her to do so. He took the note to New York, and there had it discounted by plaintiffs and received the money, lldcl, that the note had no inception until delivered to plaintiffs, and that the contract was therefore made in New Y ark.
    2. Capacity to contract—Determined by lex loci contractus.
    
      IMS, that being by the law of New York capable of entering into the contract the law of the place of the performance in no way affected the defendant’s capacity to contract.
    
      F. H. Osborn, for resp’ts; Griswold & Cornell, for app’lt.
   Learned, P. J.

The defendant and her husband were domiciled in the state of New York. He went into Connecticut and there signed her name to an accommodation note, dated and payable in Connecticut to the order of a firm of which he was a partner. He was authorized by her to do so. He took the note to New York and there had it discounted by plaintiffs, and he received the money.

The question is whether she is hable. The laws of Connecticut do not authorize a married woman to contract except for the benefit of herself, her family or her separate or joint estate.

The note had no inception until it was delivered to plaintiffs. The contract was, therefore, made in New York. Hence, we may eliminate from the case the fact that the note was written in Connecticut. That is of no more consequence than the place where the paper was manufactured.

As defendant’s husband was her agent to make the note, and was also one of the firm of payees, his possession of the note was not a transfer to the payees. The note remained in his possesion as her agent until its delivery in New York to the plaintiffs. The case is the same, therefore, as if she had delivered the note in New York, either to the plaintiffs or to the payees to be forthwith negotiated.

The question is one simply of defendant’s capacity. It is not a question as to any construction of the contract; such as rate of interest, days of grace, mode of presentment and the like. And when reduced to its simplest statement the question is whether a married woman, domiciled in New York, has capacity to make a contract in New York which is to be performed in a state where a married woman has not power to make such a contract.

We do not see how the place of performance in any way affects the capacity to contract. The law of the place of performance does not forbid her to perform. And even if it did, that might not affect her capacity. Certainly, when the law of this state says that a married woman may make a contract, neither her privilege to the contract nor the rights of those with whom she contracts are to be taken away by the law of another state.

These views are sustained by authority. Thus, Huberus’ Praelect, 21, chap. 1, tit. 3, § 5; Ue Conflictu Legum, “Promote contractus celebrati secundum jus loci, in quo contrahuntur, ubique tarn in Jure quam extra jucliciam etiam ubi hoc modo celebrati non valerent, sustinentur.”

And again, section 12, he says: “ Qualitates personales cerlo loco alicui jure impressas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo jure, quo tales personae alibi gaudent vel subjecti sunt, fruantur et subjiciantur.”

And this he illustrates by saying that in some provinces those who are over twenty are considered to have reached majority, and that they can alienate immovables even in those places where no one is considered to have reached his majority until he is twenty-five.

This rule would for the ends of justice, hold a married woman domiciled in this state, liable upon a contract made by her in a state by the laws of which she had not capacity to contract.

The same doctrine is laid down by Story’s Conflict of Laws, §66 et seq.; and by Kent’s 2 Com., 458, viz.: that the general capacity of parties to contract depends as a general rule upon the law of the place of contract.

It is true, hower, that Huberus says, section 10: “ Verum lamen non ita praecise respiciendus est locus, in quo contractus est innitus, ut si partes odium in contrahendo locum respexerint, Ule nonpotius sit consider andus.”

But that remark does not have reference to the capacity of the parties; as the illustration shows which he gives. That is: that where residents of Frieseland marry wives in Holland and take them at once to Frieseland, the law of Frieseland governs as to community of property between husband and wife.

There has been some discussion in books and authorities whether the place of domicile should prevail in determining the capacity of the contracting party. See Milliken v. Pratt (125 Mass., 374), for a discussion of this matter; where the validity of the contract was sustained on the ground that it was valid where it was made. Scudder v. Union Nat. B’k., 91 U. S., 406; Foote’s Inter. Law, 31; 2 Kent’s Com., 456; Wharton Conf. L., § 114.

But that is a question which we need not decide. Both domicile and place of contract were in New York.

We may also cite in support of the views above expressed Bell v. Packard (69 Me., 105), Hill v. Pine River Bank (45 N. H., 300).

Judgment affirmed, with costs.

Booker and Lardón, JJ., concur.  