Plaintiff replied accepting Jordan's proposition to pay interest and renew the note, and inclosing the form of a note, which, as originally printed, specified Chattanooga as the place of execution and also stipulated for interest at the "legal rate." The words "Chattanooga, Tenn.," in the date line and "legal rate" in the body of the paper were marked out by plaintiff, and the words "Florence, Ala.," substituted for the former, and "8 per cent" for the latter, before the form was sent to the defendants. The letter of plaintiff accompanying this paper requested that the interest accrued on the former note be paid at once, and that the note as made out and indorsed be signed and returned. The paper, as sent to and received by the defendants, contained this stipulation: "If suit is brought on this note, I agree to pay all 563 the attorney's fees and costs of collection." Before signing, the defendants erased or struck out, by drawing a line through them, the words: "I agree to pay all attorney's fees and costs of collection," and added to the paper this memorandum: "Renewal Foster M'fg. Co. note." With this erasure and this addition they signed the paper, had W. P. Campbell to indorse the same, and mailed it to plaintiff at Chattanooga, inclosed in a letter written by Jordan in which he states he has been unable to get the money to pay the accrued interest on the old note, but will pay it soon, and asks that the amount of the new note be credited upon the old, and the latter so credited be held for the unpaid interest. The paper thus changed reached the plaintiff at Chattanooga in due course of mail, and was accepted by him there as the contract between him as payee, the defendants as makers and Campbell as indorser. On these undisputed facts, it is too clear for much discussion that the contract evidenced by this note was consummated at Chattanooga, Tennessee, and, being also payable there, was in every sense and for all purposes a Tennessee contract. The paper sent by the plaintiff to the defendants to be signed and indorsed was essentially a proposition involving certain specified terms. Had it been signed without alteration and then remailed at Florence to the plaintiff at Chattanooga, the contract evidenced by it would have been consummated at Florence by the unqualified acceptance there of plaintiff's proposition evidenced by signing the note containing the terms of that proposition and by delivering the paper thus signed into the mail, which, postage being prepaid, would have been an efficacious delivery to the plaintiff, whereby execution of the note would have been consummated. But this did not happen. The defendants did not accept plaintiff's proposition; but submitted to

the plaintiff at Chattanooga a counter proposition for his acceptance or rejection at that point. They, in effect, said, We will not agree to pay the debt and attorney's fees and costs of collection, as you propose, but we will agree, as set forth in the accompanying note, to pay the debt only, and we inclose said note as our proposition counter to yours for your consideration, and acceptance or rejection. Again, plaintiff's proposition was upon the condition that the defendants 564 presently pay the interest which had accrued on the existing note. This condition was not met by the defendants, but another was submitted in its stead; that they would pay the interest as soon as practicable in the future, and that in the mean time plaintiff should hold the original note credited with the amount of the renewal note as security for the past due interest. Had there been no change in the paper itself, this failure to meet plaintiff's proposition in respect of the interest, and this submission to the plaintiff at Chattanooga of a counter proposition in that regard, would have left the whole matter open until the plaintiff received the note and the proposition as to interest at Chattanooga and there assented to it, whereby the receipt of the note would have constituted its delivery to him, or rejected it, whereby the whole matter would have been set at large. With these new matters injected into the negotiation by the defendants, the case stands in principle, as if, without previous communication, the defendant had proposed by letter addressed to the plaintiff at Chattanooga to renew the existing note as to its principal by a new note, and had to that end inclosed to the plaintiff for his acceptance or rejection a paper in the form of a note dated and signed by them at Florence, but payable at Chattanooga, and this paper had been delivered to and accepted by the plaintiff at Chattanooga. Upon these facts, which are in legal effect the facts of this case, the note is essentially and for all purposes a Tennessee contract, because it is not only payable in that state but also was executed-made-in that state: Story on Conflict of Laws, secs. 242, 242 a, 280, 291, 292, 293, 293 a, 293 b, 296-306; 3 Am. & Eng. Ency. of Law, 546-549, 561-563; Parsons on Notes and Bills, 324-327; Young v. Harris, 14 B. Mon. 556; 61 Am. Dec. 170; Lee v. Selleck, 33 N. Y. 615; Hyde v. Goodnow, 3 N. Y. 266; Murphy v. Collins, 121 Mass. 6; Rindskopf v. De Ruyter, 36 Mich. 1; 33 Am. Rep. 340; Bell v. Packard, 69 Me. 105; 31 Am. Rep. 251; Milliken v. Pratt, 125 Mass. 374; 28 Am. Rep. 241; 1 Daniel on Negotiable Instruments, secs, 868, et seq; Andrews v. Pond, 13 Pet. 65; Cowles v. Townsend, 37 Ala. 77; Evans v. Kittrell, 33 Ala. 449; Broughton v.

Bradley, 36 Ala. 689; 2 Parsons on Contracts, 696, et seq; Backman v. Jenks, 55 Barb. 468; Johnston v. Gawtry, 83 Mo. 339; Story on Promissory Notes, secs. 155, et seq., 165; 1 Randolph on Commercial Paper, sec. 28.

565

On the trial below, the defendants pleaded that this is a Tennessee contract, and that it was void under the laws of that state for that it stipulates for the payment of a greater rate of interest than is allowed by those laws; and, in support of the plea, certain sections of the code of that state and decisions upon them by its court of last resort were adduced in evidence. The statutes thus relied on and proved are the following:

"Sec. 2700. Interest is the compensation which may be demanded by the lender from the borrower, or the creditor from the debtor, for the use of money.

"Sec. 2701. The amount of said compensation shall be at the rate of six dollars for the use of one hundred dollars for one year; and every excess over that rate is usury.

"Sec. 5622. No person shall receive by way of compensation for the use of money more than at the rate of six dollars for the use of one hundred dollars for one year.

"Sec. 5623. The punishment of this offense shall be a fine, in no case less than ten dollars, nor more than the amount of the usury received, to be ascertained by the jury. In case the defendant plead guilty to the charge, or judgment go against him on a plea in abatement, a jury shall be sworn to ascertain the amount of usury received."

And it was further shown by another section of the code that the word "person" used in section 5622 includes a corporation. The adjudged cases put in evidence were Thompson v. Collins, as reported in 2 Head, 441, and Islar v. Brunson, as reported in 6 Humph. 277. In these cases, it is held by the supreme court of Tennessee that, under the statutes we have quoted, a contract for the payment of money in that state which contains a stipulation for the payment of interest at a greater rate than six dollars for one hundred dollars--or six per cent is illegal and void, and will not be enforced in the courts. The note sued on here contains an express stipulation for the payment of eight per cent interest on the debt evidenced by it. We have seen that not only was it to be paid in Tennessee, but also that it was made there. The law of that state 566 is, therefore, the law of this contract in respect of its validity vel non. By that law and in that state it is void, and this upon principles which are not only not offensive to our laws and public policy, but which, to the

contrary, are given like effect upon similar contracts made in this state: Youngblood v. Birmingham etc. Sav. Co., 95 Ala. 521; 36 Am. St. Rep. 245. The note being void at the place and under the law of the contract, is void in Alabama, and everywhere else, and will not be enforced in our courts: Authorities supra; Story on Conflict of Laws, secs. 243, 291, 292, 296; 3 Am. & Eng. Ency. of Law, 552-53, and this, of course, though had the same contract been made in this state, it would have been valid and enforceable in our tribunals: McAllister v. Smith, 17 Ill. 328; 65 Am. Dec. 651; Yerger v. Rains, 4 Humph. 259.

The principle invoked by plaintiff that where a contract for the payment of money is executed in one state or country, and is by its terms to be performed in another, the parties may therein stipulate for any rate of interest allowed by the laws of either such state of country. Hunt v. Hall, 37 Ala. 702, Cubbedge v. Napier, 62 Ala. 518, can have no application here, since this contract was both executed and to be performed in the state of Tennessee.

The trial below was without a jury. The district judge on the evidence found for the plaintiff, and judgment was entered up accordingly. There was exception taken to this finding and judgment, presenting the case for trial de novo on the facts: Acts 1890-91, sec. 8, pp. 605 et seq. The trial judge erred in applying the law to the undisputed facts; and we are constrained to reverse the judgment of the district court. A judgment will be here entered for the defendants.

Reversed and rendered.

The Place of the Con'ract.

In the note to Ford v. Buckeye State Ins. Co., 99 Am. Dec. 668, we have considered the subject of the place where a contract is deemed to have been made, and can here do little more than to cite the cases arising since the writing of the former note, and to illustrate the principles governing the subject by showing their application by the courts in adjudged cases. We wish here to remark that in many of the cases the question determined was not so much what was the place of the contract as it was what was the place which the parties intended to be that of the contract, or, rather, at what place was it intended by the parties that the contract should be operative and be performed. For, if there is otherwise doubt as to what is the place of the contract, and it appears that the parties intended it to be executed in a particular place or state, it will naturally be assumed that they intended it to be controlled by the laws of that state and to be so construed as to be valid there.

The Place of Final Assent.-It is undoubtedly true that a contract cannot exist to which the assent of two or more parties is essential

until that assent has been given by all, and, therefore, where there are negotiations or various steps leading to the contract, the last of which is necessary before it can become a contract, it is not finally executed until that step has been taken, and, wheresoever the other steps have been taken, the last only is regarded as giving the contract a place or locality, and it is, therefore, deemed executed at that place only where the final or last act of consent is given. The principal case is a good, though perhaps an extreme, illustration of this rule. The note there in question was drawn in Tennessee, and sent to the maker in Alabama, his state of residence, to be there executed. Had it been executed as drawn, the final assent would have been manifested by the maker when he affixed his signature in the state of his residence and deposited the note in the mails, or otherwise transmitted it to the payee in Tennessee. The note, under these circumstances, would have been valid, because it violated no law of the state of the maker's residence, where the last act of assent had been given. But the maker did not execute the note as drawn. He made changes in it of so substantial a character that the payee might have refused to accept it as a compliance with what had hitherto been proposed, and, until the acceptance by him, the note was manifestly inoperative. On receipt of the note, he, in effect, ratified the changes that had been made in it by accepting it in the altered form, and by such acceptance it became, for the first time, an obligation. This final assent was given in Tennessee, and, therefore, the note was deemed a Tennessee contract, and as falling within the statutes of that state respecting usury, and was declared void, though had it been drawn in Tennessee in the form in which it was finally executed, and sent to Alabama, and there signed without alteration by the debtor, it would have been regarded as an Alabama contract in nowise affected by the usury laws of Tennessee. We cannot but feel that the application of the rule in the principal case was a miscarriage of justice, and that in so applying it the court overlooked other principles which are at least as well established as that the place of final assent is usually deemed to be the place of the execution of a contract. There is no doubt, however, of the general rule that a contract is, for most purposes, deemed to have been executed at the place or within the state where the final assent to its provisions was given: Gipps etc. Co. v. De France, 91 Iowa, 108; 51 Am. St. Rep. 329; Dord v. Bounaffee, 6 La. Ann. 563; 54 Am. Dec. 573; Whiston v. Stodder, 8 Mart. 95; 13 Am. Dec. 281; Cromwell v. Royal etc. Co., 49 Md. 366; 33 Am. Rep. 258; Milliken v. Pratt, 125 Mass. 374; 28 Am. Rep. 241; Mactier v. Frith, 6 Wend. 103; 21 Am. Dec. 262; Wilson v. Lewiston etc. Co., 150 N. Y. 323; post, p. 680; Shelby etc. Co. v. Burgess Gun Co., 8 App. Div. 444: 40 N. Y. Supp. 871. Therefore, a bill of exchange drawn upon a partnership is controlled by the laws of the state where it was accepted, though the partners resided, and carried on their business, in another state: Scudder v. Union Nat. Bank, 91 U. S. 406; and a contract made by an agent without authority, but rati ed by his principal, must be regarded as the contract of the latter made at the place of its ratification: Dord v. Bounaffee, 6