Merchants' Bank of Canada v. Griswold. It is a general rule that a contract is to be governed by the laws of the place where it is made, unless by its terms it is to be performed elsewhere. Jewell v. Wright, 30 N. Y. 264. This contract must be deemed to have been made by the defendant in Canada, and I think with a view to the laws of Canada. The letter of credit authorized Loveland to draw for the defendant anywhere, and we may presume that the authority was to draw in Canada. It was contemplated by the parties that the letter of credit was to be delivered when the draft was discounted. It took effect, therefore, in contemplation of the parties when delivered to the plaintiff in Canada, and operated, as we have seen, as an acceptance, and in respect to this question, it is the same as though the defendant had been personally present in Canada and accepted the draft there. No place of payment was specified, and I think in such a case it is very clear that the laws of Canada, as to the construction and validity of the contract, must govern. Lee v. Selleck, 33 N. Y. 618, was not as strong a case for the application of this principle. The action was against the indorser. PORTER, J., said: "The fact that he wrote his name in Illinois is of no moment if the engagement was consummated elsewhere. The note, with indorsement in blank, was intrusted to his own agent for delivery to the plaintiffs in New York; it was only by such delivery that it became operative as a mutual contract." to The advance was made in Canada, and the inference is irresistible that the parties dealt with reference to the laws there, especially in the absence of any indication of a contrary intent. It was a Canada contract. and the mere circumstance that some act was necessary be done in this State to secure reimbursement does not change its effect. Story, in his Conflict of Laws, § 287, lays it down that when advances are thus made, the undertaking is to replace the money at the same place, even though the mode of reimbursement be by drafts on a foreign country. In Lanusse v. Barker, 3 Wheat. 146, the rule is concisely stated as follows: "When a general authority is given to draw bills from a certain place on account of advances there made, the undertaking is to replace the money at that place. The same principle was reiterated in 6 Peters, 685, and was sanctioned in First Nat. Bk. of Toledo v. Shaw, 61 N. Y. 293. See, also, 5 Cl. & Finn. 1. The authority in this case was to draw anywhere, and therefore it was an authority to draw in Canada, and the laws of Canada must govern. The judgment must be affirmed. Judgment affirmed. Wilkinson v. First National Fire Ins. Co. WILKINSON V. FIRST NATIONAL FIRE INS. Co. (72 N. Y. 499.) Insurance-limitation effect of injunction on. A policy of fire insurance provided that no suit should be maintained thereon unless commenced within twelve months after loss or damage. To avoid this provision set up in defense to an action thereon, the plaintiff showed that a third person had obtained an injunction restraining the defendant from paying and the holders from receiving the loss or damage under the policy. The New York statute of limitations provides that when the commencement of an action shall be stayed by injunction, the time of the continuance of the injunction shall not be part of the time limited for the commencement of the action. Held, (1) that the injunction did not suspend the operation of the limitation nor relieve from the forfeiture; (2) that the exception in the statutes does not apply to limitations by contract, but only to statutory limitations; (3) that the injunction did not restrain the bringing of an action. A CTION on policies of insurance. The facts appear in the opinion. Defendant had judgment and plaintiff appealed. Esek Cowen, for appellant. The action was not barred by the omission to bring it within twelve months after the loss, the parties insured being under injunction. Barker v. Millard, 16 Wend. 572; Ames v. Un. Ins. Co., 14 N. Y. 253; Mayor, etc., v. Ham. Ins. Co., 39 id. 45; Berrien v. Wright, 26 Barb. 208; McQueen v. Babcock, 41 id. 337. D. M. Westfall, for respondent. ANDREWS, J. The policies were issued to Martin Wallace, one of the firm of James Thompson & Co., to which firm the loss, if any, was payable. The plaintiff derives title to the claim against the defendant by virtue of an assignment from Thompson & Co., made June 11, 1873. The fire which destroyed the insured property occurred January 14, 1871. The proofs of loss were served immediately thereafter, and this action was commenced October 16, 1873 nearly two years and nine months after the fire. The policies contain a provision that no suit for the recovery of any claim thereunder shall be sustainable in any court of law or chancery, unless it shall be commenced within twelve months after the loss Wilkinson v. First National Fire Ins. Co. or damage shall occur, any statute of limitation to the contrary notwithstanding. It is well settled that the parties to a contract may provide for a shorter limitation to actions thereon than that fixed by the general law. Such an agreement is not expressly or impliedly prohibited by the general statute of limitations, and is consistent with the policy upon which statutes of limitation are founded. Ames v. The New York Union Ins. Co., 14 N. Y. 253; Ripley v. Etna Ins. Co., 30 id. 136; Roach v. N. Y. & E. Ins. Co., id. 546; Mayor v. Hamilton Ins. Co., 39 id. 46. The defendant, among other defenses, set up the contract limitation in bar of the action. The plaintiff, to avoid this defense, proved the following facts: In April, 1871, an action was commenced in the Supreme Court, in which the Cambridge Valley National Bank was plaintiff, and Wallace, Thompson & Co. and The First National Fire Insurance Company of Worcester were defendants, in which the bank claimed by virtue of an alleged agreement with Wallace to be entitled to the policies of insurance now sued upon, and to the money due thereon, and prayed for an injunction restraining the insurance company from paying, and Wallace, Thompson & Co. from receiving any money on account of the loss of the insured property, and for other relief. An injunction order was granted in the action on the 27th of April, 1871, enjoining and restraining the insurance company from paying and the defendants Wallace, Thompson & Co. from receiving the loss or damage owing under or by virtue of the policies in question until the further order of the court. This order was served on Wallace, but was not served on the company, and it does not appear that the company had any knowledge of the commencement of the suit. The injunction was dissolved June 11, 1873. It is claimed by the learned counsel for the plaintiff that the injunction restrained and prohibited the bringing of an action on the policies, and that this disability excused and relieved the assignors of the plaintiff from the necessity of bringing an action within the year after the loss in order to save their rights; or in other words, that the time during which the injunction was pending is not to be counted as any part of the time limited in the contract. It is to be observed that this claim is not justified by the terms of the contract. The provision fixing the time within which an action must be brought is distinct, definite and unqualified. The contract contains no saving of the right of action after the Wilkinson v. First National Fire Ins. Co. expiration of a year from the loss, for any cause whatever; and unless the bringing of the action within the time limited by the contract was waived by the defendant, or was excused and made impossible by the act of God or of the law, the remedy of the plaintiff has been lost. We shall assume, for the present, that the injunction order by its true construction prevented the commencement of a suit for the recovery of the claim. If the injunction had been procured by the defendant, then, within the principle that a party shall not take advantage of his own wrong or be permitted to claim a forfeiture by reason of an act or omission which he himself caused, the company would be precluded from the defense. "If the obligee himself be the cause that the obligation cannot be performed, there is no forfeiture for it in his own act." Vin. Abr., tit. Condition N. C. C., 23; Bac. Abr., tit. Condition O., 3. But the facts do not bring the case within this principle. The defendant neither procured the injunction to be issued nor was it procured with its privity or consent. It had no knowledge that it was to be applied for or that it had been issued; nor did the company consent to an extension of the time for bringing an action, or do any act upon which a waiver of the limitation could be predicated. The plaintiff to succeed in this case must maintain the proposition that an injunction is issued at the suit of a third person against one of the parties to a contract, restraining him from bringing an action thereon within the time limited thereby, is an act of the law which dispenses with the condition, excuses the delay, and prevents a forfeiture. That an injunction staying the commencement of an action does not ipso facto operate to suspend the running of the statute of limitation, or relieve a party from its operation, was decided in Barker v. Millard, 16 Wend. 572. The Revised Statutes contained a provision saving the rights of parties stayed by injunction, 2 Rev. St. 299, § 36, which is now section 105 of the Code. This provision does not aid the plaintiff. The exception has no application where a limitation is prescribed by the contract of parties, but only applies to cases governed by the limitation in the general law. This is sufficiently clear from a reading of the section, but the question has been adjudicated in a case arising under a contract similar to the one in question. Riddlesbarger v. Hartf. Ins. Co., 7 Wall. 386. If the issuing of an injunction restraining a party from bringing an action is an act of the law which suspends the running of a contract limitation, it must have the same effect Wilkinson v. First National Fire Ins. Co. in respect to cases governed by the statute, and upon this assumption the case of Barker v. Millard was wrongly decided. But it is clear that the court must have held the contrary, and the statutė was amended to remedy the apparent hardship, and a restraint imposed by the court should operate to deprive a party of his right of action. That a court of equity may relieve a party who has lost his remedy at law on a contract, in consequence of an injunction procured by the other party, and prevent the latter from setting up the bar of the statute, we are not disposed to deny. In 2 Cases in Chancery, 217, it is said: "If a suit be in chancery for a debt. for rent, by lease, parol or simple contract, and beginneth within time of limitation, and be dismissed after the time of limitation,. the court will not order the defendant to take no advantage of the statute of limitation. But if in such suit the party be stayed by act of the court, or by injunction, it is otherwise; for the act of the court shall do no prejudice, as in the case of demurrers at common law." Lord ELDON in Pulteney v. Warren, 6 Ves. 72, states very clearly the ground upon which a court of equity interferes to protect a party against an injury in such a case. He says: "If there be a principle upon which courts of justice ought to act without scruple, it is this: to relieve parties against that injustice occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought." In some early cases it seems to have been held that equity will prevent the bar of statute being set up at law in cases where the time has run during proceedings in chancery, without fault of the defendant. Anon., 1 Vern. 74 ; 2 Atk. 615. But the cases on this point are inconsistent. 1 Atk. 282; 2 id. 1. And it is said by an English writer that in some recent and unreported cases no such relief has been allowed a plaintiff who has lost his remedy at law, while endeavoring to pursue it in equity. Banning on Lim. of Actions, 33. See, also, Manby v. Manby, L. R., 3 Ch. D. 101. It is difficult to perceive on what principle a party shall be deprived of the benefit of the statute of limitations, where he has not in any way contributed to the delay, and we have found no modern case supporting such a jurisdiction. It is no excuse that one has been prevented by a stranger from performing his contract. In Vin. Abr., tit. Condition, K. C. 1, it is said: "If the condition of an obligation be to deliver a certain thing to the obligee, bought of him of the obligor, it is not any discharge that a stranger recovered it from him after;" and Baron VOL. XXVIII-22 |