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Green agt. Van Buskirk.
ered in other states, says: “Such a judgment is to conclude as to every thing over which the court which rendered it had jurisdiction. If the property of the citizen of another state, within its lawful jurisdiction, is condemned by lawful process there, the decree is final and conclusive.”
It would seem to be unnecessary to continue this investigation further, but our great respect for the learned court that pronounced the judgment in this case, induces us to notice the ground on which they rested their decision.
It is, that the law of the state of New York is to govern this transaction, and not the law of the state of Illinois, where the property was situated; and as, by the law of New York, Bates had no property in the safes at the date of the levy of the writ of attachment, therefore, none could be acquired by the attachnent. The theory of the case is, that the voluntary transfer of personal property is to be governed everywhere by the law of the owner's domicil, and this theory proceeds on the fiction of law, that the domicil of the owner draws to it the personal estate which he owns, wherever it may happen to be located. But this fiction is by no means of universal application, and, as Judge Story says, “yields, whenever it is necessary for the purposes of justice that the actual situs of the thing should be examined.” It has yielded in New York on the power of the state to tax the personal property of one of her citizens, situated in a sister state, (The People ex rel. Hoyt agt. The Com'r. of Taxes, 23 N. Y., 225,) and always yields to “Jaws for attaching the estate of non-residents, because such laws necessarily assume that property has a situs entirely distinct from the owner,s domicil.”
If New York cannot compel the personal property of Bates (one of her citizens) in Chicago, to contribute to the expenses of her government, and if Bates had the legal right to own such property there, and was protected in its ownership by the laws of the state ; and, as the power to protect implies the right to regulate, it would seem to
Green agt. Van Buskirk.
follow, that the dominion of Illinois over the property was complete and her right perfect to regulate its transfer, and subject it to process and execution in her own way, and by her own laws. We do not propose to discuss the question, how far the transfer of personal property, lawful in the owner's domicil, will be respected in the courts of the country where the property is located, and a different rule of transfer prevails.
It is a vexed question, on which learned courts have differed; but, after all, there is no absolute right to have such transfer respected, and it is only on a principle of comity that it is ever allowed. And this principle of comity always yields, when the laws and policy of the state where the property is located, have prescribed a different rule of transfer with that of the state where the owner lives. We have been referred to the case of Guillander agt. Howell, (35 N. Y., 651.) recently decided by the Court of Appeals of New York, and, as we understand the decision in that case, it harmonizes with the views presented in this opinion. A citizen of New York, owning personal property in New Jersey, made an assignment, with preferences to creditors, which was valid in New York but void in New Jersey; certain creditors in New Jersey seized the property there under her foreign attachmant laws, and sold it, and the court of appeals recognized the validity of the attachment proceedings, and disregarded the sale in New York. That case and the one at bar, are alike in all respects, except that the attaching creditor there, was a citizen of the state in which he applied for the benefit of the attachment laws, while Green, the plaintiff in error, was a citizen of New York; and it is insisted, that this point of difference is a material element to be considered by the court in determining this controversy, for the reason that the parties to this suit, as citizens of New York, were bound by its laws.
But the right under the constitution of the United States,
Green agt. Van Buskirk.
and the law of Congress, which Green invoked to his aid, is not at all affected by the question of citizenship.
We cannot see, why, if Illinois, in the spirit of enlightened legislation, concedes to the citizens of other states, equal privileges with her own, in her foreign attachment laws, that the judgment against the personal estate, located in her limits, of a non-resident debtor, which a citizen of New York lawfully obtained there, should have a different effect given to it, under the provisions of the constitution and the law of congress, because the debtor, against whose property it was recovered, happened also to be a citizen of New York.
The judgment of the supreme court of the State of New York is reversed, and the cause remitted to that court, with instructions to enter judgment for the plaintiff in error.
Calkins agt. Falk.
COURT OF APPEALS.
William B. CALKINS, appellant, agt. ABRAM FALK, respondent.
The written memorandum of a contract of purchase and sale of property, demanded
by the statute of frauds, requires parties, a subject-matter, and a consideration. Where the memorandum fails to show who were the contracting parties—which was
the seller and which the buyer, it is defective and void.
June Term, 1869.
APPEAL from decision of the general term of the supreme court of the third judicial district.
D. C. BAKER, attorney for appellant.
JAMES, J.-A nonsuit should have been directed on the trial ; the evidence failed to establish a legal contract binding on the defendant.
By the statute of frauds (2 R. S., 136, 53), “every contract for the sale of any goods, chattels, or things in action, for the price of $50 or more, is declared void, unless a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby, or unless the buyer accept and receive part of the goods, &c., or unless the buyer shall at the time pay some part of the purchase-money."
The contract sought to be enforced was for the sale of goods of the value of over $50, no part thereof was delivered and accepted, and no part of the purchase-money paid down.
To constitute a contract there must be parties, a subjectmatter, and a consideration. The written memorandum
Calkins agt. Falk.
demanded by the statute requires this in the writing subscribed by the party to be charged.' The form of the writing is not regarded; if the writing expresses a contract, no matter how informally, the statue is satisfied. So on the other hand, no matter how formal the writing may be, if it do not contain within itself a contract, it fails to satisfy the statute.
The writing set forth in the complaint did not satisfy the statute. It did not show to whom the hops were sold; it imposed no obligation upon any person to by or to pay. It was simply a memorandum that defendant had sold his hops, for which he agreed to pay himself. It no more purported an agreement with the plaintiff's assignor, than with any other party.
In Champion agt. Plummer (4 Bos. and Pull., 253) the plaintiff sought to recover on a memorandum in his own book, written thus: “Bought of Wm. Plummer, 20 puncheons treacle, at 37c. to be delivered by 10 Dec.” Signed, “Wm. Plummer.” Lord MANSFIELD, in deciding the case, said, “How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties? By this note it does not appear to whom the goods were sold. It would prove a sale to any other party as well as to the plaintiff; there cannot be a contract without two parties."
This deficiency of the contract sued upon, was sought to be supplied by the production of another instrument, which, it was claimed, should be construed in connection with the first as one instrument. It is a rule of law that “ several written instruments, executed at the same time, between the same parties, and relating to the same subject matter, may be construed together as forming parts of a single instrument.”
But there was no evidence that the two instruments pro duced were executed at the same time; they are dated at the same town, and on the same day, but that does not