Dissenting Opinion.
Adams, J.I am unable to concur in the majority opinion, holding that the negotiability of a promissory note is governed by the law of the place of payment. It is doubtless true that the maker of a promissory note may, by the use of apt words in the instrument itself, expressly contract as to the law that shall govern such note, and his contract will be given effect. But, I insist that a promissory note, executed in Indiana, without any stipulation as to the law governing the same, is an Indiana contract, and, if not made payable at a bank within this State, is not negotiable as an inland bill of exchange. When a note is. executed in Indiana, the law of this State, as to its negotiability, is impressed upon it at once, and such note cannot subse*185quently lose its character as an Indiana contract. One who executes a promissory note in this State is presumed to know the statute law of this State, but he is not presumed to know, nor is he bound by the statute law of the state of Illinois, and the statute law of Illinois is not read into, and does not become a part of the note. A note payable within this State, by §9076 Burns 1908, §5506 E. S. 1881, is made negotiable as an inland bill, of exchange. If the note is not payable at a bank within this State, it is not negotiable by the law merchant, and this is true of a note executed in Indiana, payable at a bank in Illinois. Bay v. Baker (1905), 165 Ind. 74, 89, 74 N. E. 619.
The majority opinion, however, holds that a note executed in Indiana, by a citizen of Indiana, but made payable at a bank in Illinois, is an Illinois contract from its inception, and where suit is brought against the maker in Indiana, and the Illinois statute making all promissory notes negotiable in that state, is pleaded, with other facts, a special answer setting up a defense to the note is not good. It is a general rule that in the absence of an express stipulation to the contrary, a note will be construed according to the lex loci contractus, and, under our decisions, I do not believe that the naming of the place of payment in the contract furnishes an exception to the rule. The conclusion reached in the majority opinion is clearly based on the premise that, as appellants executed the note in suit, which was payable at a bank in the state of Illinois, it must follow that their intention was, that the note should be an Illinois contract from its inception, and governed by the Illinois statute, as to its negotiability. In law, as well as in logic, this is a non sequitur. Intention to do a certain thing necessarily implies at least presumptive knowledge of the thing intended to be done. "We know that even this court does not take judicial cognizance of the statute law of another state until pleaded. Iiow, then, can we consistently charge a citizen 'of Indiana with actual or presumptive knowledge which this *186court itself disclaims ? And, if appellants are not presumed to know that all promissory notes are negotiable under the statute of Illinois, how can we say that appellants intended to make their note negotiable, from the isolated fact that it was made payable at a bank in Illinois ?
In Garrigue v. Kellar (1905), 164 Ind. 676, 74 N. E. 523, 69 L. R. A. 870, 108 Am. St. 324, it was held that a contract must be construed under the laws of the state where executed, unless it can be fairly said that the parties at the time of its execution clearly manifested an intention that it should be governed by the laws of another state. In the same case, the court, on page 682, said: “The substantial essence of a contract, evidenced by a promissory note, is the undertaking by the makers to pay the principal sum of money named. The place of payment is an incidental matter. The makers are not discharged from their principal obligation by an unaccepted tender of the amount owing, at the time and place designated for payment, but by such tender are released only from liability for damages which would otherwise accrue from nonpayment. Makers of promissory notes cannot insist that they will pay at the place designated or not at all, but may be sued on their obligation, and payment of the principal amount enforced at any place where jurisdiction over their persoiis or property may be acquired. ’ ’
The legal effect of the majority opinion is to bind the maker of a promissory note, not negotiable under the law of the place of execution, by a statute of a foreign state, of which the maker has neither actual nor presumptive knowledge. Such a rule, I believe, would open the door to deception and fraud, and would be taken as an invitation to cut off legitimate defenses, by inserting, as the place of payment, the name of a bank in another state, where all promissory notes are negotiable. I think the majority opinion is in clear antagonism to the principle announced *187in the cases herein cited, and that the judgment should be reversed.