Obrázky stránek

validity of the transaction, having knowledge of the contract and making no move to secure the return of the property, are estopped to complain. Atkinson v. McCulloh (1926) — Md. 132 Atl. 148.

c. Contract as voidable unconditionally. In a few jurisdictions the view obtains that, while the contract of one who has not been judicially declared insane is not wholly void, but only voidable, at the option of the insane. person or his representatives, yet the right to avoid it is unconditional and does not depend on the question of good faith of the other party or his knowledge of the insanity, and may be exercised though it is impossible to restore the consideration or put the parties in the position they occupied when the contract was made. Hovey v. Hobson (1866) 53 Me. 451, 89 Am. Dec. 705 (deed); Seaver v. Phelps (1831) 11 Pick. (Mass.) 304, 22 Am. Dec. 372 (contract of bailment); Brewster v. Weston (1920) 235 Mass. 14, 126 N. E. 271 (deed); Hermanson v. Seppala (1926) Mass. 152 N. E. 363; Bates v. Hyman (1900) Miss. -, 28 So. 567 (deed of trust); Campbell v. Campbell (1913) 35 R. I. 211, 85 Atl. 930; Williams v. Sapieha (1901) 94 Tex. 430, 61 S. W. 115 (deed); Mitchell v. Inman (1913) Tex. Civ. App. 156 S. W. 290 (deed); Ferguson v. Fitze (1914) Tex. Civ. App. 173 S. W. 500

[ocr errors]
[blocks in formation]

without knowledge of the insanity, or reason to suspect it, will be upheld. The court in this case, however, observed that the plaintiffs below, who were heirs at law of the incompetent who died after the execution of the lease in question, were not claiming the right to rescind, but in effect insisting that the lease be sustained and the defendant be required to pay the plaintiffs the difference between the amount paid by defendant and the reasonable value of the lease. The judgment in favor of defendant was affirmed.

While the deed of an insane person is voidable, yet this privilege of avoidance is confined to the grantor, his executor, administrator, committee, guardian, or heirs. Strangers and those merely privies in estate of the grantor have no such right. Porter v. Brooks (1913) Tex. Civ. App. 159 S. W. 192.

Thus in Seaver v. Phelps (1831) 11 Pick. (Mass.) 304, 22 Am. Dec. 372, the court said: "We are to consider the plaintiff as in a state of insanity at the time he pledged his note to the defendant; and, this being admitted, we think it cannot avail him as a legal defense to show that he was ignorant of the fact and practised no imposition. The fairness of the defendant's conduct cannot supply the plaintiff's want of capacity. The defendant's counsel rely principally on a distinction between contracts executed and those which are executory. But if this distinction were material, we do not perceive how it is made to appear that the contract of bailment is an executed contract, for if the note was pledged to secure the performance of an executory contract, and was part of the same transaction, it would rather be considered an executory contract. But we do not consider the distinction at all material. It is well settled that the conveyances of a non compos are voidable, and may be avoided by the writ dum fuit non compos mentis, or by entry."

So, in Campbell v. Campbell (1913) 35 R. I. 211, 85 Atl. 930, it was held that the following requested instruction was properly refused: "Even if

the jury believe that James Campbell was insane at the time he gave the note in evidence in this case to Elisha J. Campbell, yet if the jury also believe that Elisha J. Campbell, at the time he received the note, did not know, or have sufficient reason to know, that his father was then insane, then inasmuch as Elisha J. Campbell cannot now be tendered back such consideration as he furnished for the note, he is entitled to recover in this action at least the amount of that note, and interest thereon to the date of the death of James Campbell." The court said: "It cannot then be said that the note, as such, became a valid obligation upon which recovery could be had, simply because the payee of the note did not know or have sufficient reason to know of such insanity. That would be a most dangerous rule as to recovery in such cases; it would permit the payee to show that he was ignorant, and entitled to recover in a case where everyone else knew the fact of insanity and where the proof of the fact was overwhelming. Such a ruling was refused in the trial court in the case of Seaver v. Phelps (Mass.) supra, and the refusal was sustained by the supreme judicial court, on exception."

Where an insane person gives a note secured by a mortgage to attorneys for a fixed sum, to defend him against a felony charge, an action thereon may be defeated by the payment of either the agreed fee or a less amount, if such should be reasonable compensation for attorneys' fees; and if no services are performed, no recovery can be had. This disability of recovery extends to a bona fide purchaser of the note and mortgage, without knowledge of the fact that the maker and conveyancer was insane. Ferguson v. Fitze (1915) Tex. Civ. App. 173 S. W. 500.

In Bates v. Hyman (1900) Miss. -, 28 So. 567, it appeared that the defendant purchased certain machinery and merchandise of the plaintiffs, while he was insane, and gave his note with a deed of trust of the machinery and some land to secure its payment. The plaintiffs sold the machinery and

merchandise and took the note and deed of trust in good faith, without any notice of the defendant's insanity. On a bill to enforce the note and deed of trust it was held that the defendant's insanity was a good defense without any offer to return the merchandise and machinery, and that the relief against the defendant should be limited to a decree for the machinery, to be enforced by a sale of it, and for such other things as fell within the class of necessaries.

In Gibson v. Soper (1856) 6 Gray (Mass.) 279, 66 Am. Dec. 414, a case perhaps not directly in point, as it does not appear that the deed in question was taken in good faith without knowledge of the insanity of the grantor, but which is frequently cited on the question of the right of an insane person to have his contracts avoided without placing the other party in statu quo, the court said: “To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say, in effect, that, in a large majority of cases, his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater. One of the obvious grounds on which the deed of an insane man or an infant is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds of the sale. And the same incapacity which made the deed void may have wasted the price, and rendered the restoration of the consideration impossible. For example: One buys of an insane man his farm; he gives a note, good only because it has a good indorser; the insane grantor omits to have the indorser notified, and loses its value. Must he, before he can recover the estate, put the grantee in statu quo? Upon the first impression, it may seem equitable that such restoration should be made before the insane or infant

grantor should recover his estate; but it is an impression which a little reflection removes. The law makes this very incapacity of parties their shield. In their weakness they find protection. It will not suffer those of mature age and sound mind to profit by that weakness. It binds the strong, while it protects the weak. It holds the adult to the bargain which the infant may avoid; the sane, to the obligation from which the insane may be loosed. It does not mean to put them on an equality. On the other hand, it intends that he who deals with infants or insane persons shall do it at his peril. Nor is there, practically, any hardship in this; for men of sound minds seldom unwittingly enter into contracts with infants or insane persons. If the law required restitution of the price as a condition precedent to the recovery of the estate, that would be done indirectly which the law does not permit to be done directly, and the great purpose of the law in avoiding such contracts, the protection of those who cannot protect themselves, defeated. The insane grantor could not avoid the deed of his estate, because the same folly which induced the sale had wasted the proceeds; the result against which it is the policy of the law to guard."

In Hovey v. Hobson (1866) 53 Me. 451, 89 Am. Dec. 705, it was held that an insane person or his heirs may avoid a conveyance made to a person who takes without knowledge of the insanity, and before an adjudication of lunacy, even as against subsequent bona fide purchasers for value and without notice.

IV. Rule in Louisiana. In Louisiana the statute declares that no act of an insane person, anterior to the petition for the interdiction, shall be annulled, except where it shall be proved that the cause of such interdiction notoriously existed. at the time when the act the validity of which is contested was made or done, or that the party who contracted with the interdicted person could not have been deceived as to the situation of his mind. Louisiana Bank v. Dubreuil (1818) 5 Mart. 416; Smith's Succession (1857) 12 La. Ann. 24; Schmidt v. Ittman (1894) 46 La. Ann. 888, 15 So. 310; Wolf v. Edwards (1901) 106 La. 477, 31 So. 58. By "notoriously" is meant that the insanity was generally known by the persons who saw and conversed with the party. Where the proof is contradictory as to general insanity, and totally defective as to its notoriety, a conveyance by the insane person will not be set aside. Laloire v. Lacoste (1832) 4 La. 114. Under the statute a mortgage by an insane person, made prior to an adjudication of insanity, I will not be declared void unless there is proof that the mortgagee was not deceived as to the state of mind of the mortgagor. Louisiana Bank v. Dubreuil, supra. In Wolf v. Edwards, supra, it was held that the circumstance that a person who discounted the note of a woman, afterward shown to have been insane at the time, was a brother-in-law of the woman's son, was not sufficient to charge him with knowledge of her mental unsoundness at the time the note was executed. W. F. A.

ROBERT D. JOHNSTON, as Surviving Partner of the Firm of James Risk, et al., Respt.,

[blocks in formation]

1. A final French judgment by a court of competent jurisdiction pass

ing on the merits, in the absence of fraud, is entitled to full faith and credit in a New York state court in which the unsuccessful plaintiff in the foreign court again brings his case.

[See annotation on this question beginning on page 439.]

[ocr errors][merged small][merged small]

APPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, First Department, affirming a judgment of a Trial Term for New York County in favor of plaintiff in an action brought to recover damages for alleged wrongful delivery of goods by defendant. Reversed. The facts are stated in the opinion of the court. Messrs. Joseph P. Nolan, Edward J. Garity, and Arthur K. Kuhn, for appellant:

A party may not successfully contest the terms of a judgment of a French court, rendered in an action in a French court which such party initiated.

Hilton v. Guyot, 159 U. S. 170, 40 L. ed. 110, 16 Sup. Ct. Rep. 139; Ricardo v. Garcias, 12 Clark & F. 368, 8 Eng. Reprint, 1450-H. L.; The Griefswald, Swabey, Adm. 430, 166 Eng. Reprint, 1200; Barber v. Lamb, 8 C. B. N. S. 95, 141 Eng. Reprint, 1100; Lea v. Deakin, 11 Biss. 23, Fed. Cas. No. 8,154; Gould v. Gould, 235 N. Y. 14, 138 N. E. 490; Dunstan v. Higgins, 138 N. Y. 70, 20 L.R.A. 668, 34 Am. St. Rep. 431, 33 N. E. 729; Bigelow, Estoppel, 5th ed. 307; Story, Confi. L. § 607; Konitzky v. Meyer, 49 N. Y. 571.

Plaintiffs may not be heard now to come before this court and insist that the judgment of the French court has no force or effect.

Barber v. Lamb, 8 C. B. N. S. 95, 141 Eng. Reprint, 1100; MacDonald v. Grand Trunk R. Co. 71 N. H. 448, 59 L.R.A. 448, 93 Am. St. Rep. 550, 52 Atl. 982; Monroe v. Douglas, 4 Sandf. Ch. 126; Cummings v. Banks, 2 Barb. 602.

The judgment of the French court is conclusive of the merits of this action.

Hubbard v. Hubbard, 228 N. Y. 81, 126 N. E. 508; Gould v. Gould, 235 N. Y. 14, 138 N. E. 490; Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404; Dunstan v. Higgins, 138 N. Y. 70, 20 L.R.A. 668, 34 Am. St. Rep. 431, 33 N. E. 729; Story, Confl. L. § 601; Wharton, Confi. Laws, 3d ed. § 652, p.

1403; Bigelow, Estoppel, 5th ed. 307; 1 Greenl. Ev. § 547.

Messrs. Moses Feltenstein, Abraham Rosenstein, and Sol. Boneparth, with Mr. Harry A. Dubinsky. for respondent:

Plaintiff may sue in our courts on a claim in personam, although his suit on the claim in the French courts resulted in a judgment against him.

Hilton v. Guyott (C. C.) 42 Fed. 249; Hilton v. Guyot, 159 U. S. 113, 40° L. ed. 95, 16 Sup. Ct. Rep. 139; Story, Confl. L. § 617.

The judgment of the French court did not so bind respondent as to prevent him from trying this action upon its merits.

Hilton v. Guyot, 159 U. S. 210, 211 212, 40 L. ed. 124, 125, 16 Sup. Ct. Rep. 139; Gould v. Gould, 201 App. Div. 127, 194 N. Y. Supp. 122, 235 N. Y. 14, 138 N. E. 490; Westlake, Private International Law, 5th ed. 1912, p. 429; Story, Confl. L. § 617; Burnham v. Webster, 1 Woodb. & M. 172, Fed. Cas. No. 2,179; 2 Kent, Com. 120; Grubel v. Nassauer, 210 N. Y. 149, 52 L.R.A. (N.S.) 161, 103 N. E. 1113; McEwan v. Zimmer, 38 Mich. 765, 31 Am. Rep. 332.

Pound, J., delivered the opinion of the court:

The controversy arises over an alleged wrongful delivery of goods by the defendant, a steamship carrier, which is a foreign corporation organized under the laws of the Republic of France. Plaintiff is the assignee of triplicate bills of lading issued in New York, under which

(242 N. Y. 381, 152 N. E. 121.)

one Frank E. Webb shipped the goods from New York to Havre. Defendant delivered the goods to other parties upon presentation of a non-negotiable copy of the bill of lading which Webb retained as an office copy not used for presentation to secure the delivery of the goods.

Defendant set up as a defense an adjudication of the Tribunal of Commerce at Paris in favor of defendant upon the same cause of action, in an action brought by plaintiff thereon, and established on the trial that the French judgment was the final judgment on the merits of a court of competent jurisdiction. No attempt was made to impeach it for fraud. The courts below refused to give effect to the French judgment on the authority of Hilton v. Guyot, 159 U. S. 113, 40 L. ed. 95, 16 Sup. Ct. Rep. 139, decided in 1895, for the reason that by the law of France no foreign judgment can be rendered executory in France without a review of the judgment au fond, that is, of the whole merits of the cause of action on which the judgment rests; that for want of reciprocity the courts of this state are not bound by the judgment, but will, in their discretion, examine the rights of the parties as fully and absolutely as if the matter had never been submitted to the French court; and that on the merits the French judgment was contrary to the principles of our law and should be disregarded.

The New York rule was stated in Dunstan v. Higgins, 138 N. Y. 70, 20 L.R.A. 668, 34 Am. St. Rep. 431, 33 N. E. 729, decided in 1893, as follows: "It is the settled law of this state that a foreign judgment is conclusive upon the merits. It can be impeached only by proof that the court in which it was rendered had no jurisdiction of the subject matter of the action or of the person of the defendant, or that it was procured by means of fraud.

The judgments of the courts of a sister state are entitled to full faith and credit in the courts of the other states under the Constitution of the

[ocr errors]

United States, but effect is given to the judgments of the courts of foreign countries by the comity of the nations which is part of our municipal law. The refusal of the foreign court to allow a commission to examine witnesses here does not affect the conclusive character of the judgment. Such applications are generally within the discretion of the court to which they are addressed and then a refusal to grant them does not constitute even a legal error subject to review. But even if it appeared in this case, as it does not, that some legal right of the defendant was denied in refusing the application that would not affect the validity or conclusive nature of the judgment, so long as it stood unreversed and not set aside. Legal errors committed upon the trial or during the progress of the cause may be corrected by appeal or motion to the proper court, but they furnish no defense to an action upon the judgment itself. Where a party is sued in a foreign country, upon a contract made there, he is subject to the procedure of the court in which the action is pending, and must resort to it for the purpose of his defense, if he has any, and any error committed must be reviewed or corrected in the usual way. So long as he has the benefit of such rules and regulations as have been adopted or are in use for the ordinary administration of justice among the citizens or subjects of the country he cannot complain, and justice is not denied to him. The presumption is that the rights and liability of the defendant have been determined according to the law and procedure of the country where the judgment was rendered."

This is the modern English doctrine, and the doctrine of some, at least, of our state courts (Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404; Konitzky v. Meyer, 49 N. Y. 571, 576; MacDonald V. Grand Trunk R. Co. 71 N. H. 448, 59 L.R.A. 448, 93 Am. St. Rep. 550, 52 Atl. 982; Nouvion v. Freeman, L. R. 15 App. Cas. 1, 9-H. L.; God

« PředchozíPokračovat »