I cannot concur in the opinion of Mr. Justice SHARPE.
The obligation in suit was executed in this State by defendant Clara A. Price, a married woman, and bore no relation to her separate estate and, without more, carried no personal liability when sued upon *Page 660 in this jurisdiction. But, it is claimed, that the obligation was accepted in the State of Illinois, and was there payable and, by the law of that State, Mrs. Price is not saved from liability by reason of want of capacity under the Michigan law of coverture.
As pointed out later in this opinion personal liability of Mrs. Price could not be enforced in Illinois under the theory of an Illinois contract.
In the case at bar negotiations for the loan, to be secured by mortgage, had reached the stage where the lender prepared the note and mortgage in Illinois and sent the same to an agent in Michigan, with direction as to execution by defendants in this State and, when executed, to be returned by such agent to the mortgagee in Illinois. Mrs. Price, at the request of the agent, executed the instruments and the agent mailed the same to the mortgagee.
The instant case does not involve conflict of laws relative to the construction, force and effect of the instruments, signed or executed in one State to be performed in another, but that of capacity of Mrs. Price to enter into such an obligation in this State.
It is well said in a note, 26 L.R.A. (N.S.) 773:
"While there are almost numberless cases which state, with slight variations, Story's general proposition that, where the contract is either expressly or tacitly to be performed in some place other than that where it is made, the general rule is, in conformity to the presumed intention of the parties, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance, none of them can be regarded as express authority for the application of that rule to the question of the capacity of a married woman to contract. Few of them can be relied upon for the application of that rule to any question relating to the existence of a contract as *Page 661 distinguished from its interpretation or obligation or essential validity."
It must be agreed that this case is governed by the law of Michigan or of Illinois. If by the law of Michigan, it is clear, and is not disputed, that defendant has no personal liability on the note, recoverable from her separate estate.
Assuming, however, that by the Michigan law of the forum the case is governed by the law of Illinois, it presents the unique situation in the realm of conflict of laws that by the law of Illinois, Burr v. Beckler, 264 Ill. 230 (106 N.E. 206, L.R.A. 1916 A, 1049, Ann. Cas. 1915 D, 1132), the case is governed by the law of Michigan.
In Burr v. Beckler, the wife, a resident of Illinois, was sojourning temporarily in Florida. Her husband owed a concern in Illinois, of which he was treasurer, on an overdraft. He informed his wife that he could borrow the necessary money to pay the overdraft from an estate of which he was trustee. The wife executed a note and trust deed in Florida and mailed them to her husband, as trustee, at Chicago, Illinois, as he had directed her to do. The husband also signed the trust deed but the opinion does not state when. The court held that delivery of the note and trust deed by the wife was complete in Florida, the law of that State governed her capacity to contract and, because she was not competent to enter into a contract under the law of Florida, her note and trust deed were void.
The question is not whether the decision is in harmony with the law of Michigan but whether it governs this case. Here, manual delivery was as complete as in the Burr Case because it was made to a bank which had been designated by the mortgagee for that purpose. *Page 662
In neither case had there been a binding engagement by the mortgagee to make the loan prior to the delivery. In neither case had the money been paid in advance of the delivery or contemporaneously therewith. There is nothing in the Burr Case to indicate that the mortgagee could not have refused to make the loan or that the mortgagors could not have refused to take the money or could not have abandoned the matter after the wife deposited the papers in the mail. The Burr opinion indicates no circumstance fixing the effect of the manual delivery which is not present here. The Burr Case is directly applicable and, consequently, under the law of Illinois it must be held that the capacity of defendant Clara A. Price is governed by the law of Michigan. Under the law of Michigan, a married woman cannot bind her separate estate through personal engagement for the benefit of others. Defendant Price is not liable.
Affirmed, with costs to defendant Price.
NORTH, C.J., and FEAD and TOY, JJ., concurred with WIEST, J.