The note upon which this action is brought is not only made payable, but bears date, at the city of Apalachicola, in the State of Florida. Upon its face, therefore, it *Page 480 would appear to be a contract made, as well as to be performed, in Florida, and of course to be governed by the laws of that State. The presumption, however, that it was made at the place where it was dated, was liable to be repelled by proof; and evidence was introduced at the trial for that purpose, which, it is claimed, established the fact that the note was a New York contract, and hence that its validity must depend, not upon the law of Florida, but upon that of New York. If the evidence on this subject was closely scrutinized, it might admit of some doubt whether the whole contract of which the note was a part should not be considered as actually made in Florida, although the papers constituting the written evidence of the contract were drawn and signed in the city of New York. But as, in the view I take of the case, it cannot affect the result, I shall assume that the contract, pursuant to which the note was given, as well as the note itself, was made in New York.
Prima facie, a contract is to be governed, in respect to its construction and validity, by the law of the place where it is to be performed. Hence, if a security is made in one country or State, but is payable in another, the rate of interest, if nothing is said on the subject, is to be regulated by the law at the place of payment. (Cooper v. The Earl of Waldegrave, 2 Bea., 282.) Of course, therefore, it can be no objection to the validity of such a security that it expressly provides for the payment of interest at that rate. It is true that if the security is made payable elsewhere for the mere purpose of evading the usury laws of the place where it is made, it will be usurious and void. But this is a fact to be established by proof. The judge, in this case, was requested to instruct the jury that they might find, from the evidence, that the place of payment was inserted as a mere cover for usury; but there was nothing in the case upon which to base such a charge. The transaction out of which the note arose, was substantially a Florida transaction. The makers of the note lived in Apalachicola; the consideration for which it was given was located there; and it was both natural and proper that the parties should fix upon that as the place of payment. *Page 481
But as the rate of interest inserted in the note exceeds the rate allowed in this State, the defendant's counsel insists that the note is, prima facie, usurious. He relies upon the ordinary presumption that the laws of a foreign State, nothing being shown to the contrary, correspond with our own; and claims that it was incumbent upon the plaintiff to repel this presumption by proof that the law of Florida allowed interest at the rate mentioned in the note.
I doubt whether the presumption relied upon extends to a case of this kind. Our statute of usury is highly penal. It forfeits the entire debt. At common law, the contract would be perfectly good. We are not, I think, called upon to presume that foreign States have adopted all our penal legislation. If, however, we assume the contrary, it would not affect the result in this case. Although no direct proof appears to have been given in this case as to the law of the State of Florida, it seems, nevertheless, to have been assumed, throughout the trial, that, by that law, eight per cent interest, the rate provided for by the note, was allowed. Nearly all the applications made to the judge, at the close of the case, for specific instruction to the jury, would otherwise be senseless and unmeaning.
The judge was requested to charge, that "both the contract and note having been made in the State of New York, the reservation of eight per cent interest" rendered the note usurious and void; also, "that the fact that land in Florida formed the subject matter for which the note was given was immaterial on the question of usury," for the reason that the note was made payable to residents of the city of New York, and pursuant to a contract made there; and, again, that the note having been given in New York to citizens of that State, and upon a contract made there, the jury might find that its terms were designed as a cover for usury. Each of these requests would be wholly unmeaning, unless it be assumed that, by the law of Florida, the note would be valid. The opinion of the Supreme Court, delivered at general term, is based upon the express assumption that, by the law of that State, eight per cent interest was allowed. It is too late now, therefore, to take *Page 482 the ground that there was no proof on that subject. The fact was, no doubt, mutually understood and conceded upon the trial.
But there is another reason why the defence of usury cannot prevail. The note was not given for a loan of money or of goods, or for a preëxisting debt of any kind, but upon a sale of lands in Florida. The case, in that respect, is precisely like that ofBeete v. Bidgood (7 B. C., 453), where notes, executed in England and payable in England, but given for the purchase money of an estate in Demarara, included interest at six per cent, which exceeded the rate allowed in England. The Court of King's Bench held that the notes were not usurious; that, although the word interest was used, the substance of the transaction was, that the purchase money of the estate was to be paid in installments of a certain amount — a contract which was in no respect illegal. There can be no doubt of the correctness of this decision. To constitute usury, there must be either a present loan or a forbearance in respect to some debt previously existing. In such a case as this, there is neither. No error, therefore, was committed upon the trial, so far as the defence of usury is concerned.
In respect to the defence of the statute of limitations, it is insisted by the defendant's counsel that, although the defendant demurred to the plaintiff's reply to that branch of the defence, and although this demurrer was brought to argument and overruled by the court, it was nevertheless incumbent upon the plaintiff, upon the trial, to prove the facts set out in his reply. There is clearly no foundation for this position. A demurrer to any pleading admits the facts stated in it, not merely with a view to obtaining the opinion of the court upon those facts, but for the purposes of the case. After decision upon a demurrer, the party may, by the special permission of the court, withdraw his demurrer, and take issue upon the facts; but while the demurrer remains upon the record, the facts admitted by it cannot be controverted, so far, that is, as the particular series of pleadings is concerned which terminate in the demurrer. If there are other issues involving the same facts, they are not affected by the demurrer. *Page 483
Suppose the statute of limitations had been the only defence set up in the answer, and the plaintiff's reply to that defence had been demurred to: must the plaintiff, notwithstanding a decision in his favor upon this demurrer, still bring the case to trial for the purpose of establishing the facts admitted by the demurrer? This can hardly be pretended. The statutory denial of new matter in a reply, which results from section 168 of the Code, is precisely equivalent to a denial by a rejoinder, if that had been permitted; and a party could never, at common law, demur and rejoin at the same time to the same replication. He might do this in succession; that is, he might withdraw his demurrer after a decision upon it, and then rejoin by the special leave of the court, but not otherwise. The order entered upon the decision of the demurrer in this case expressly authorized the defendant to withdraw his demurrer upon payment of costs. If he had availed himself of this privilege, the reply would then have stood controverted by force of the provisions of section 168 of the Code. Having omitted to do this, the decision of the demurrer was final, and entitled the plaintiff to judgment, so far as the defence of the statute of limitations was concerned.
The decision of the demurrer itself, however, may still be reviewed. The principal question which that presents is, whether all the successive absences of the defendant Wright from the State are to be deducted from the time which elapsed between the date of the note and the commencement of the suit, in determining whether the statute attaches, or only the first of those absences. The right of action upon this note having accrued before the Code, this question depends upon the provisions of the Revised Statutes. (Code, § 73.) The last clause of section 27, 2d Revised Statutes, page 297, provides that "if, after the cause of action shall have accrued against any person, he shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." It was held by Mr. Justice NELSON, in Dorr v. Swartwout (5 N.Y. Leg. Obs., 172), that, under this provision, only a single absence *Page 484 could be deducted; but the late Supreme Court, in the case ofBurroughs v. Bloomer (5 Denio, 532), and the Superior Court of the city of New York, in Ford v. Babcock (2 Sand. S.C., 518), declined to follow that decision, and this court, in the case of Cole v. Jessup (10 N.Y., 96), where the precise question arose, held, without a dissenting voice, that, under the proviso in question, successive absences might be accumulated and the aggregate deducted. This question, therefore, must be considered settled. This disposes of the defence of the statute of limitations, so far as the lapse of time is concerned. It is shown, in the opinion of the Supreme Court, that the several absences of the defendant Wright amounted in the aggregate to one year and ten months; and as the whole period, between the time when the note fell due and the time when the summons in this case was actually served, was only about seven years and four months, it is clear that the statute had not attached.
But it is contended that the reply is insufficient, because it does not aver the absence of Dardin, the other maker of the note. This averment was unnecessary. The statute may attach and the suit be barred as to one of two joint makers of a note, and the cause of action still remain as to the other. (Fannin v.Anderson, 9 Lond. Jur., 969; Didier v. Davison, 2 Barb. Ch., 477.) I deem it unnecessary particularly to examine the case in reference to the alleged want of consideration of the note. There is clearly no error in that part of the case.
The judgment of the Supreme Court should be affirmed.