delivered the opinion of the Court:
Conceding the facts to be as found by the Appellate Court and recited in its judgment, the question is whether the judgment rendered by that court is one authorized by the facts. The contract sued upon was executed in Kansas. It related to lands in Kansas, and the Appellate Court reversed the judgment rendered in the circuit court on the contract, on the ground that there was no memorandum signed in writing by the defendant, and that the contract was within the Statute of Frauds of this State, and hence an action could not be enforced upon it. It will be observed that the Statute of Frauds of Kansas, where the contract was executed and where the property sold was located, was not pleaded, but the plea of the defendant set up the Statute of Frauds of this State. It will also be observed that the record contains no evidence whatever that the State of Kansas has enacted a Statute of Frauds, or that there is any law in that State requiring a contract relating to the sale of lands to be in writing. If, therefore, the contract in question was valid in Kansas, (and it must be so held in the absence of a law in that State to the contrary,) and is to be controlled by the laws of that State as to its validity, then the judgment of the Appellate Court was erroneous. On the other hand, if the contract is to be governed by the laws of this State, where the action was brought upon it, then the decision of the Appellate Court was correct. The question, therefore, to be determined is, whether the lex loci contractus is to control, or whether the contract shall be governed by the lex fori.
As a general rule, a contract valid in the State where it is executed may be enforced in another State. Thus, in Round-tree v. Baker, 52 Ill. 241, this court held, where an instrument executed in the State of Kentucky, prior to the abolition of slavery, for the purchase price of a negro slave sold there, was sued upon in this State, that the contract, being valid and enforcible where it was made, will be enforced in our courts under the law of comity, notwithstanding such a contract could not have originated here, by reason of slavery being prohibited in this State. It is there said: “It is a general rule that we look to the law of the place where the contract is entered into, and not where it is to be enforced, to ascertain its validity. Not only so, but in expounding its terms and conditions.” Sutherland on Statutory Construction (sec. 471) says: “The laws which exist at the time and place of the making of a contract determine its validity, construction, discharge and measure of efficacy of its enforcement. A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. ”
It is a familiar rule that the laws existing at the time and place of the execution of a contract enter into and form a part of the contract. Thus, in Edwards v. Kearzey, 96 U. S. 595, it is said: “It is the settled doctrine of this court that the laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge and enforcement. ”
A very interesting case on this subject is Cochran v. Ward, 29 N. E. Rep. 795, and as the opinion in that case refers to and quotes from a number of authorities, we quote from the language of the opinion: “In the case of Law v. Andrews, 1 Story, 38, it was held that a contract for the sale of goods in France, if valid there, would be enforced in this country, though within the Statute of Frauds here. In Scudder v. Bank, 91 U. S. 406, it was held that in an action upon the parol acceptance of a bill of exchange to be performed in Missouri, the Statute of Frauds of the place of the contract should control, as it affected the formality necessary to create a legal obligation. The case of King v. Fries, 33 Mich. 277, was an action in Michigan upon a contract for the sale of goods in Ohio; it was held that the Ohio Statute of Frauds applied. The case of Houghtaling v. Ball, 19 Mo. 84, was an action in Missouri upon a contract for the sale of wheat to be delivered in the State of Illinois; it was decided that the Illinois Statute of Frauds obtained. The ease of Anderson v. May, 10 Heisk. 84, was an action in Tennessee upon a lease for lands in Arkansas ; the court decided that the Statute of Frauds of the latter State should be allowed to control the contract. Denny v. Williams, 5 Allen, 1, was an action in Massachusetts upon a contract for the sale of wool in New York, and the defendant set up the New York Statute of Frauds. The court held the answer good, saying: ‘As. the contract was made in the city of New York, and was to be performed there, the laws of the State of New York must govern us in respect to its construction and performance.’ The Supreme Court of Louisiana, in Vidal v. Thompson, 11 Mart. (La.) 23, said: ‘An instrument, as to its form and the formalities attending its execution,' must be tested by the law of the place where it was made.’ In Pickering v. Fish, 6 Vt. 102, the court used this language: ‘As to the requisites of a valid contract, the mode of authentication, the forms and ceremonies required, and, in general, everything which is necessary to perfect or consummate the contract, the lex loci contractus governs, though, with respect to conveyances, or other contracts relating to real estate, the statutory regulations of the place where such estate is situated must be observed.’ ”
As observed before, the contract involved was executed In Kansas, related to property in that State, and was to be performed in Kansas. Under the authorities cited, the laws of Kansas entered into and formed a part of the contract, and if the contract was valid in that State, although it may be prohibited by our Statute of Frauds, our courts, under the doctrine of comity, in an action on the contract, could do no less than enforce it. If the laws of Kansas rendered the contract void or voidable, for the reason that it related to lands and was not in writing, that was a matter the defendant was bound to plead and prove. As was held in Smith v. Whitaker, 23 Ill. 367, a contract made in another State or in a foreign country will be presumed to be made in accordance with the laws of the place of its execution, and a violation of those laws, if relied on as a defense, must be pleaded and proved. Here the defendant interposed a plea of the Statute of Frauds, but did not set up that it was the law of or a statute in Kansas. In the absence of an averment that the statute was one of another State, we will presume it was the statute of our own State. But if the defendant had pleaded the statute of Kansas he would occupy no better position, for the reason that, no proof whatever was introduced tending to show what the statute or law of Kansas was.
From what has been said, if we are correct, our Statute of Frauds, relied upon by defendant, was no defense. The judgment of the Appellate Court will be reversed, and the judgment of the circuit court will be affirmed.
Judgment reversed.