Bradshaw v. Newman, 1 Ill. 133, 1 Breese 133 (1825)

Dec. 1825 · Illinois Supreme Court

1 Ill. 133, 1 Breese 133

Thomas Bradshaw, Plaintiff in Error, v. John Newman, Defendant in Error.

ERROR TO MADISON.

The laws of the country where the contract is made, must govern its construction, and determine its validity. ⁽¹⁾

A plea stating “ that the consideration of the note was for an improvement on public land in Arkansas,” without averring that by the laws of that territory such improvements were not permitted, is bad.

A plea of failure of consideration, without setting out how it has failed, is bad. ⁽²⁾

(1) The general principle adopted by civilized nations is, that the nature, validity, and interpretations of contracts, are to be governed by the laws of the country where the contracts are made, or are to be performed; but the remedies are to be governed by the laws of the country where the suit is brought. Humphreys v. Powell, post. Stacy v. Baker, 1 Scam., 417. Forsyth et al. v. Baxter et al., 2 Scam., 12. Holbrook et al. v. Vibbard et al., id., 465. Chenot v. Lefevre, 3 Gilm., 642. Sherman et al. v. Gassett et al., 4 Gilm., 521. Strawbridge v. Robinson, 5 Gilm., 470. Schuttler v. Piatt, 12 Ill., 419. Crouch v. Hall, 15 Ill., 264. See also to the same point, Bank of U. S. v. Donally, 8 Peters, 361. Cox et al. v. The United States, 6 Peters, 172. Green v. Sarmiento, Peters’ C. C. R., 74. Webster v. Massey, 2 Wash. C. C. R., 157. Aman v. Sheldon, 12 Wend., 439.

It is a well-settled principle, that the statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. McClany v. Silliman, 2 Peters, 270. Ruggles v. Keeler, 3 Johns., 268.

The courts of one country will not enforce either the criminal or penal laws of another. Sherman v. Gassett, 4 Gilm., 525.

(2) See note to Taylor v. Sprinkle, ante, page 17.

Opinion of the Court by

Justice Lockwood.^*

This action was commenced in the Madison circuit court, on a sealed note made on the 31st of October, 1818, in the then territory of Missouri. The defendant pleaded three pleas, to wit:

1. That the consideration of the note was for the sale of an improvement made upon the public land of the United States, situate in the territory of Arkansas ;

2. That the consideration lias wholly failed; and,

3. That the note was executed for an improvement right in the Arkansas territory, on land belonging to the United States, and that the plaintiff is, and has been for some time past, in the possession of said improvement, without purchase or lease from the defendant, wherefore the consideration has failed.

To which pleas the plaintiff demurred, and the defendant joined in demurrer. The court below sustained the pleas, and gave judgment for defendant. To reverse which decision, a writ of error has been brought to this court. The first plea in this case is extremely inartificially drawn, and it is difficult for 'the court to ascertain what is the precise point intended to be presented for decision. The question argued upon this plea was, that a note executed as the consideration of a sale of an improvement made on the lands of the United States, can not be recovered in the courts of this state, upon the principle that “ all contracts which have for their object any thing which is repugnant to justice, or against the general policy of the common law, or. contrary to the provisions of any statute, are void.” The pleadings in this case do not, however, present any such question. The declaration states the contract to have been made in the territory of Missouri, and for any thing that is alleged in the plea, the contract may be sanctioned by the laws of Missouri. No principle is better settled, than that the laws of the country where a contract is made, shall govern its construction and determine its validity, ^(a)

Starr, for plaintiff in error.

Cowles, for defendant in error.

The first plea is therefore clearly bad. The second plea has frequently been decided to be bad by this court, because it does not set forth in what the failure of the consideration consisted.

The third plea is similar to the first, with this addition, that the plaintiff “ is, and has been for some time past, in the possession of the said improvement, without purchase or lease from this defendant.” This allegation is doubtless introduced for the purpose of showing that the defendant has not received from the plaintiff what he contracted for, as the consideration of the note.

It does not, however, appear from the pleas, but that the defendant received the possession of the improvement right, or that the plaintiff has ever prevented him from taking and enjoying the possession ; and from aught that appears, the defendant may have sold his possession to some third person, who again may have transferred his claim to the plaintiff. The plea is too imperfect to bar the plaintiff’s action. It may also be observed in relation to the first and third pleas, that the defendant is guilty of a singular inaccuracy in stating that the consideration of the note was for an improvement in the territory of Arkansas. The note was dated in 1818, and Arkansas was not formed into a territory until some time after that year. The judgment must be reversed with costs, and the proceedings remanded to the Madison circuit court, and the defendant permitted to amend his pleas. ^(b)

Judgment reversed.

* Justice Smith having been counsel in this cause, gave no opinion.

(a) Lodge v. Phelps, 1. Johns. Cas., 139. Smith v. Smith, 2 Johns. Rep., 235. Ruggles v. Keeler, 3 Johns. Rep., 263.

(b) Taylor v. Sprinkle, ante, page 17. Cornelius v. Vanarsdall, 23. Poole v. Vanlandingham, 47.