Pomeroy v. Ainsworth. (7 Mass. Rep. 433. 19 John. 334, 335, 336, and cases cited. 8 Mass. Rep. 259. 10 id. 284.) But if the agreement was a contract for a loan of money, and if, according to the laws of New York, it is usurious, it can nevertheless be sustained in this state if it is to be construed according to the laws of Vermont, and if under those laws it is a valid agreement. The pleadings and affidavits show that the agreement was negotiated, made and executed in Vermont, and that the defendants, Ainsworth & Hunt, reside in Vermont, and that the Bank of Castleton is a bank located and doing business in that state. The defendants, Ainsworth & Hunt, in their answer allege that at the time of the execution of the agreement it was intended that the lumber, or a greater portion thereof, would be sent, for market, to Boston and other places in New England; and three witnesses, whose affidavits were read by the defendants on the hearing of the motion, state that the rate of interest which Ainsworth & Hunt would receive, if any, for their advances under the agreement, was spoken of during the negotiation by the parties, and that it was intended and understood by all of them that such interest would be computed according to the laws of Vermont, at the rate of 6 per cent per annum. This evidence must outweigh the unsupported statement of the plaintiff, in his affidavit, that the rate of interest was not mentioned in any part of the negotiation. It is conceded that the first $3000 was advanced by Ainsworth & Hunt to the plaintiff in Vermont. If the plaintiff was in error as to the conversation, during the negotiation in respect to the rate of interest, he may have been equally mistaken in his statement that it was understood and contemplated at the time of making the contract, that the money to be advanced by Ainsworth & Hunt, except the first $3000, should be both advanced and repaid in New York. The plaintiff, in his opposing affidavit, does not deny the allegation in the answer, that at the execution of the agreement it was intended that the lumber should be sent for market to New England. The pleadings and affidavits, therefore, establish the following facts, viz: The agreement was negotiated, made and exe Pomeroy v. Ainsworth. cuted, in Vermont; the defendants now reside in Vermont, and resided there at the time of the execution of the agreement; $3000 was advanced, under the agreement, by the defendants, Ainsworth & Hunt, to the plaintiff, in Vermont; the parties, at the execution of the agreement, agreed that the interest on the advances of Ainsworth & Hunt should be computed according to the laws of Vermont, at the rate of 6 per cent per annum; at the execution of the agreement it was intended by the parties that the lumber, or the greater part thereof, should be sold in some one of the New England states. The work and labor of the plaintiff in getting out, and in the manufacture of, the logs, were to be performed in New York; and the services of Ainsworth & Hunt in the measuring and marking the logs, and the care of the lumber at the saw mill, were to be rendered in New York; but so far as they consisted in making sales of the lumber, they were to be rendered in the places where such sales were made. The agreement being silent as to the places where the advances subsequent to the execution of the agreement were to be made, to the plaintiff, and where they were to be repaid to Ainsworth & Hunt out of the proceeds of the sales of the lumber, the law must determine them. It is a settled principle, where no place of payment is mentioned in the contract, that its legal construction is, that the money is to be paid to the creditor where he resides, or wherever he may be found. (6 Paige, 630. 10 Wheat. 367. 2 Parsons on Cont. 95, 99.) Applying this principle to the agreement in question, I think we ought to expound it as requiring Ainsworth & Hunt to make the advances (after the payment of the $3000) to the plaintiff in New York, where his labor is to be performed and where he resides; and as implying that the proceeds of the sales of the lumber are to be received by Ainsworth & Hunt at their residence in Vermont, and to be applied by them in that state in repayment of their advances, and on the debt. of the plaintiff to the Bank of Castleton. As a general rule the law of the place where contracts purely Pomeroy v. Ainsworth. personal are made, must govern as to their construction and validity, unless they are to be performed in another state or country, and were made in reference to the laws of such state or country, in which case their construction and validity depend upon the law of the place of performance. (6 Paige, 630. Story on Confl. of Laws, 242. 2 Kent's Com. 7th ed. 577, note a. 2 Parsons on Cont. 95, 96. 1 Cowen, 108. 2 Burr. 1077. Story on Contracts, §§ 653, 654. 10 How. Pr. R. 8. 4 Cowen, 510, note. 17 John. 518.) If no place of performance is expressly stated, or implied from the terms of the contract, the law of the place where it was made will govern. (Story on Confl. of Laws, 282.) If a contract is to be performed partly in one country and partly in another, each portion is to be interpreted according to the laws of the country where it is to be performed. (Story on Cont. i 655. Story on Confl. of Laws, 282, 284.) Where a contract for the payment of money is made in one place, and payment in another, and no interest is expressed in the contract, the interest is to be governed by the law of the place where it is payable. (Story on Confl. of Laws, § 291. 2 Parsons on Cont. 95, 96, 98.) If the advances, therefore, by Ainsworth & Hunt to the plaintiff are in law payable to them in Vermont, the interest on such advances is to be regulated by the laws of that state; and the usury laws of such state must govern the construction of the contract, at least so far as it relates to the moneys due and payable to Ainsworth & Hunt. But I think the agreement, or the expressed understanding of the parties at the time of the execution of the contract, that the rate of interest should be regulated by the laws of Vermont, is decisive upon the question of usury. In Chapman v. Robertson, (6 Paige, 634,) it was held by Chancellor Walworth that upon a contract for a loan of money, made in one country and payable in another, the parties might stipulate for the payment of interest according to the laws of the place where the contract is made. A like decision was made in Depeau v. Humphreys, (20 Martin's La. Rep. 1,) in Peck v. Pomeroy v. Ainsworth. Mayo, (14 Verm. Rep. 33,) and in Pratt v. Adams, (7 Paige, 632.) In this latter case, the chancellor says, if the contract is not illegal by the laws of the country where it was made and the money loaned, the fact that drafts on which the loan was made were payable in New York, will not render them void under our usury laws. Parsons, in his Treatise on Contracts, (vol. 2, p. 95,) sustains the principle of these cases. In the present case, the parties made the agreement expressly in reference to the laws of Vermont, as to interest; and those laws must therefore govern its construction, and determine its validity, at least so far as respects the question of usury. (6 Paige, 630, 634. 2 Parsons on Cont. 95. 14 Verm. Rep. 33. 2 Kent's Com. 7th ed. 576, 577, note a.) In all questions in relation to usury, parol evidence is admissible to establish or rebut it. (Cowen & Hill's Notes, 1447.) As the laws of Vermont are to govern the construction and determine the validity of the agreement, in respect to the amount of interest agreed to be paid, the plaintiff, as he alleges the illegality of the agreement, must show what are the laws of Vermont, in relation to usury. In the absence of such proof, the presumption is that the agreement is a valid agreement, under those laws. (7 Paige, 632. 1 id. 220. 2 Seld. 134.) Suspicion, alone, will not invalidate a contract. (Per Gardiner, J. 2 Seld. 134. Cowen & Hill's Notes, 1136, 1138, 1139.) It is a general rule that a party seeking advantage from a foreign law, or the law of another state of the union, must prove its existence. (Cowen & Hill's Notes, 1136. 3 Dana's Rep. 495. 8 John. 189, 193.) It seems, however, that upon a mere common law question, the legal presumption is that the common law of a sister state is similar to that of our own. (10 Wend. 75.) Having arrived at the conclusion that the agreement, at least so far as respects the amount of interest to be paid to the defendants, Ainsworth & Hunt, for their advances to the plaintiff, was made in reference to the laws of Vermont, and that it requires the advances of Ainsworth & Hunt to be repaid in that state, such agreement must be presumed to be legal, by the laws of VOL. XXII. 17 The Northern Rail Road Company v. Page. Vermont, as the contrary has not been shown by the plaintiff. And if legal by the laws of Vermont, it is protected from the operation of the usury laws of this state. I must therefore decide that the injunction order be vacated. [FULTON SPECIAL TERM, April 1, 1856. Paige, Justice. Affirmed by tho GENERAL TERM, September, 1856. C. L. Allen, Paige, James and Rosekrans, Justices.] 22 130! 79h 35 THE NORTHERN RAIL ROAD COMPANY vs. PAGE. A rule or custom of a rail road company, requiring passengers, soon after starting, to surrender their passage tickets to the conductor and receive his checks in place of them, is a reasonable rule or custom. And where a passenger, with knowledge of such custom, purchases a ticket, the law will presume that he does so in reference to the custom. The contract, on the part of the rail road company, is that they will carry the passenger over their road, provided he surrenders his ticket to the conductor when it is demanded; and the passenger will not be entitled to his passage in the cars, without the surrender of his ticket. His refusal to deliver up his ticket to the conductor, when it is demanded, will justify the latter in exacting from him his fare, in cash, and on his refusal to pay his fare, he may be expelled from the cars. If he leaves the cars without giving up his ticket, or paying for his passage, an action will lie against him for the amount of his fare. HIS was an action commenced in a justice's court, to recover the sum of $3 for transporting the defendant in the plaintiffs' cars from Rouse's Point to Madrid Station. The defendant had a ticket, purchased by him from the receiver of the Hudson River Rail Road Company, for one passage from Rouse's Point to Ogdensburgh; of which the following is a copy: "One passage. Rouse's Point to Ogdensburgh. Kendrick, receiver Hudson R. R. R. N. Y. to Ogdensburgh." Stamped June 1. The defendant entered the plaintiffs' passenger cars at Rouse's Point, going west, on the 2d of June, 1853. After the cars started, the conductor called on him for his ticket. The defendant stated that he was going to Ogdensburgh or Madrid, and that he had a ticket, which he showed |