This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The form in which a contract must be executed to be valid is controlled by the law of the place where it is made if the contract does not relate to realty.1 Thus a statute requiring every insurance policy which refers to the application to have a correct copy thereof annexed, is held not to apply to policies issued by insurance companies in other states on the lives of persons domiciled in the state in which such statute is in force.2
1 Pritchard v. Norton, 106 U. S. 124; Scudder v. Bank, 91 U. S. 406; Vrancx v. Ross, 98 Mass. 591; Gait v. Dibrell, 10 Yerg. (Tenn.) 146.
2 Crumlish v. Improvement Co.. 38 W. Va. 390; 45 Am. St. Rep. 872; 23 L. R. A. 120; 18 S. E. 456.
3 Fidelity Mutual Life Association v. Harris, 94 Tex. 25; 86 Am. St. Rep. 813; 57 S. W. 635.
4 Rumsey v. R. R., 203 Pa. St. 579; 53 Atl. 495.
1 Pritchard v. Norton, 106 U. S. 124; Vrancx v. Ross, 98 Mass. 591; Roubicek v. Haddad, 67 N. J. L. 522; 51 Atl. 938; Gait v. Dibrell, 10 Yerg. (Tenn.) 146.
2 Johnson v. Ins. Co., 180 Mass. 407; 63 L. R.-A. 833; 62 N. E. 733. So a provision as to forfeiture does not apply to a poucy issued by a
In applying this principle, however, there is a divergence of authority as to what matters concern the form of a contract and what concern merely the evidence whereby it is to be proved. The statute of frauds is held in many states to be merely a rule of evidence. Where this view is entertained the law of the forum controls.3 In other states the statute of frauds is held to involve the essential validity of the contract, and to prescribe the form in which the contract must be made. Where this view obtains the law of the forum does not, as such, control. The question then is whether the law of the place where the contract is made or where it is to be performed controls. Most states apply the general principle that the form of the contract is controlled by the law of the place where it is made, and hold that the law of such state controls as to the statute of frauds.4 Thus a bill of exchange was drawn in Illinois upon a partnership domiciled in Missouri. It was accepted orally by a member of such firm in Illinois. By the law of Illinois a bill of exchange could be accepted orally. By the statute of frauds of Missouri such oral acceptance was unenforceable. It was held that Illinois law governed.5 In other cases the law of the place of performance seems to control. Thus a bill of exchange was drawn in Missouri upon a firm in Illinois. An oral agreement was made in Missouri to accept such bill when presented in Illionis. It was held that Illinois law applied and that such contract was enforceable.6 So stamp foreign corporation. Mutual Life Ins. Co. v. Cohen, 179 U. S. 262. So a statute which requires contracts for conditional sales to be recorded is held not to apply to contracts of non-residents concerning property without the state. Ilirsch v. Lumber Co., 69 N. J. L. 509; 55 Atl. 645.
3 Leroux v. Brown, 12 C. B. 801; Kleeman v. Collins, 9 Bush. (Ky.) 460; Emery v. Burbank, 163 Mass. 326; 47 Am. St. Bep. 456; 28 L. R. A. 57; 39 N. E. 1026; Heaton v. Eldridge, 56 0. S. 87; 60 Am. St.
Rep. 737; 36 L. R. A. 817; 46 N. E. 638.
4 Scudder v. Bank, 91 U. S. 406; Miller v. Wilson, 146 111. 523; 37 Am. St. .Rep. 186; 34 N. E. 1111; Kling v. Fries, 33 Mich. 275; Da-costa v. Davis, 24 N. J. L. 319; Wilson v. Mill Co., 150 N. Y. 314; 55 Am. St. Rep. 680; 44 N. E. 959; Perry v. Iron Co., 15 R. I. 380; 2 Am. St. Rep. 902; 5 Atl. 632.
5 Scudder v. Bank, 91 U. S. 406.
6 Hall v. Cordell, 142 U. S. 116. (Suit was brought in Illinois. The law applied was therefore the law acts are generally held to affect merely the admissibility in evidence of instruments which do not conform to such statute.7 Where this view is taken a contract which does not comply with the stamp acts of the place where made, may be enforced in another jurisdiction.8 If, however, the stamp act affects the form of the contract, and makes a contract in violation of the statute invalid and not merely inadmissible in evidence, the contract is unenforceable in other jurisdictions.9