(dissenting). In this case the learned circuit court, after trial and hearing, found the facts to be that at Memphis, Tennessee, on July 15, 1909, the parties made an oral agreement whereby respondent agreed to sell to appellant and appellant agreed to buy 100,000 pounds Daisy cheese to be delivered in quantities demanded by appellant f. o. b. cars at Manitowoc, Wisconsin, up to March 1, 1910, storage charges in the meantime to be borne by the respondent. That it was also then and there agreed that this contract should be thereafter written out and signed, but this last Was never done because respondent' refused so to do. In August, 1909, and at other times, the appellant duly demanded shipments, the respondent refused, and the appellant bought the cheese on the market at the market price, and brings this action for the excess which it cost, i. e. $1,250. The total purchase price at the rate orally agreed upon in Memphis would have been $14,250.. The oral agreement is valid under the laws of the state of Tennessee.
As.conclusions of law the court found, inter alia,, that the *548agreement to deliver cheese f. o. b. cars at Manitowoc, Wisconsin, made that city the place where the title would pass and the place of performance by the respondent. That, in the absence of an agreement as to terms of payment, the law will imply a contract for cash on delivery, and it was a condition precedent to appellant’s right of possession or right to insist upon delivery that it tendered payment to respondent at respondent’s location at Manitowoc, Wisconsin, and that city is the place of appellant’s performance. The validity of the agreement made at Memphis must be determined by the laws of Wisconsin, and the agreement was therefore void under the Wisconsin statute of frauds. The learned circuit judge gave judgment for defendant, thereby finding all inferences of fact or law deducible from the evidence in favor of respondent.
It has often been held that intention is a question of fact, and that great weight will be given to the decision of the trial court upon such, questions, but this rule, while asserted at times in very strong language, appears to be weak in spots ;and is not consistently followed. Szczepanski v. C. & N. W. R. Co. 147 Wis. 180, 132 N. W. 989. My time will not permit the presentation of a critical review of eases bearing upon the conflict of laws. But the decision of the learned circuit court is supported by such learned commentators as the authors of 2 Mechem on Sales, § 1043, citing cases; 3 Ency. U. S. Sup. Ct. Rep. 1041, citing cases. I have examined the latter cases and think they support the text. See, also, cases cited on page 6 of respondent’s brief, not the least of which is International H. Co. v. McAdam, 142 Wis. 114, 118, 124 N. W. 1042, where the learned justice who writes the majority opinion in this case says:
“The place of the contract is, generally speaking, a matter of mutual intention, but the intended place, as determined by legal presumption in some cases and evidentiary circumstances in others, settles all questions as to the legal test of validity and interpretation. Such presumption, in' the ab-*549senoe of evidence to tbe contrary, is tbat the place of making and performance, in a physical sense, is the place in a legal sense, bnt the place of performance, when different from that of the actual making, is the place in such legal sense, subject to the presumption being rebutted by clear evidence of intention.”
There are no evidential circumstances here tending to rebut such presumption unless it be that the parties are presumed to have intended a valid contract. To say that the presumed intention of the parties to make a valid contract is potent to overcome the inferences of .intention arising from fixing the place of performance elsewhere is to eliminate the latter as a factor in all cases, because every one who seriously attempts t'o contract intends to make a valid contract. There is nothing else in the case upon which to ground the reversal of the judgment below. There is, however, the countervailing circumstances that the parties did not rest satisfied with the oral agreement at Memphis, but stipulated that this should be followed by and included in a written and signed instrument. There are other considerations relative to the statute of frauds suggested by Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57, and 2 Wharton, Conflict of Laws (3d ed.) sees. 690 to 695, but I forbear further comment.
I am authorized to say Mr. Justice KeewiN concurs in this dissent.