"But when an attempt was made to prove that, by the usage, a boat lost from the stern davits was not to be paid for under a policy on a ship, her tackle, etc, or that a boat slung upon the quarter was not covered by such a policy, the Supreme Court of Massachusetts, and the Court of Exchequer in England, in contemporary decisions, rejected the evidence.
"In Rankin v. The American Insurance Co., 1 Hall, 619, the defendants offered to prove in bar of a recovery on a policy on merchandise, that by the usage of trade in this port, it was indispensable, to charge the indemnitors for goods imported, that an actual survey should be made on board by the port-wardens, finding that the goods were properly stowed, and were damaged on the voyage by the perils of the sea. This court held that the evidence was inadmissible. And see Turner v. Burrows, 5 Wend. 541, affirmed in error, 8 ib. 144.
"In fine, we believe that the rule of construction applicable to policies of insurance does not differ from that applied to other mercantile instruments. Its sense and meaning are to be ascertained from the terms of the policy, taken in their plain and ordinary signification; unless such terms have, by the known usage of trade in respect to the subject-matter, acquired a meaning distinct from the popular sense of the same terms, or unless the instrument itself taken together shows that they were understood in some peculiar manner. And that while we may not enlarge or restrict the clear and explicit language of the contract, by proof of a custom or usage; yet in the application of the contract to its subject-matter, in bringing it to bear upon any particular object, the customs and usages of trade are admissible to ascertain what subjects were within, and what were excluded from its operation. Such evidence is proper, on the same principle that proof of the meaning of technical words, and words of science and the arts, is permitted in arriving at the intention of the parties in the construction of contracts."
1 Story's Conflict of Laws, § 272; Trimbey v. Vignier, 1 Bing. N. C. 151, 159; De la Vega v. Vianna, 1 B. & Ad. 284; British Linen Co. v. Drummond, 10 B. & C. 903; Wilcox v. Hunt, 13 Peters, 378, 379; Harrison v. Sterry, 5 Cranch, 289, 298; Robinson v. Bland, 1 W. Bl. 234, 256; Depau v. Humphreys, 8 Martin (n. s.), 1, 8, 9, 13, etc.; Morris V. Eves, 11 Martin, 730; Courtois v. Carpentier, 1 Wash. C. C. 376; Pope v. Nickerson, 3 Story, 484. The general rule is that contracts, in respect to their construction and force, are to be governed by the law of the country in which they are to be performed. Hall v. Costello, 48 N. H. 176 (1868).
1 1 Evans, Pothier on Oblig. 94, note b; Master, etc, of St. Cross v. Lord Howard de Walden, 6 T. R. 343.
2 Taylor v. Briggs, 2 C. &. P. 525.
3 Smith v. "Wilson, 3 B. & Ad. 728. See, however, Hinton v. Locke, 5 Hill, 437, in which Mr. Justice Bronson expressed a question as to whether the doctrine of this case could be supported, on the ground that it was "a plain contradiction of the express contract of the parties." But he, nevertheless, held, in the case before him, where a carpenter was hired at twelve shillings per day, that it was admissible for him to show a universal usage among carpenters to consider ten hours labor to be a day^s work; so that if he worked twelve hours and a half within the twenty-four hours, he was entitled to be paid for a day and a quarter. This case seems quite as strong as that of Smith v. Wilson, and quite as much in contradiction to the strict words of the contract.
4 1 Evans, Pothier on Oblig. 94, note b; Master, etc, of St. Cross v. Lord Howard de Walden, 6 T. R. 338; Hockin v. Cooke, 4 T. R. 314; Noble v. Durell, 3 T. R. 271; The King v. Major, 4 T. R. 750.
§ 803. But although a contract is ordinarily to be construed according to the law of the place where it is made, yet if it be to be performed in some other place, it must be construed according to the law of the place where it is to be performed.6 If no place of performance be either expressly stated or iniplied from the terms of the contract, the law of the place where it was made will govern.1 Thus, where a note is made at Dublin for .£100, payable at London, it would be interpreted to mean .£100 in English currency, and not in Irish currency.2 So, where a merchant in America orders goods to be purchased for him in England, the contract is to be expounded according to the law and custom of England; for there the final consent completing the contract is given, and there the contract is executed.3 So, also, although the lex loci contractus governs as to the rule of interest, in the absence of any express contract, yet if the place of payment or performance be different from that of the contract, interest will be reckoned according to the rate allowed by such place.4
1 Story, Conflict of Laws, § 271, 272; 2 Burge, Comm, on Col. and For. Law, pt. 2, ch. 9, p. 860, 861.
2 Story, Conflict of Laws, § 276; Anstruther v. Adair, 2 Myl. & K. 513, 516. See also Breadalbane v. Chandos, cited in 4 Burge, Comm. on Col. and For. Law, Appendix, 749, 755; Feaubert v. Turst, Pr. Ch. 207; Decouche v. Savetier, 3 Johns. Ch. 190; Mostyn v. Fabrigas, 1 Cowp. 174; Comstock v. Smith, 20 Mich. 338 (1870).
3 Alves v. Hodgson, 7 T. R. 241; 8. c. 2 Esp. 528; Clegg v. Levy, 3 Camp. 166.
4 Story, Conflict of Laws, § 279; Smith v. Mead, 3 Conn. 253; De Sobry v. De Laistre, 2 Har. & John. 193, 228.
5 Dalrymple v. Dalrymple, 2 Hagg. Consist. 60, 61; Story, Conflict of Laws, § 273; Blanchard v. Russell, 13 Mass. 1.
6 Story, Conflict of Laws, § 270, 280; Andrews v. Pond, 13 Peters, 65; Prentiss v. Savage, 13 Mass. 23; Chapman v. Robertson, 6 Paige, 627; 2 Kent, Comm. 457; Pope v. Nickerson, 3 Story, 484. A contract made in this State to subscribe to shares in the capital stock of a railroad corporation established by the laws of another State, and having their road and treasury there, is a contract to be performed there, and is to be construed by the laws of that State. Penobscot and Kennebec Railroad Co. v. Bartlett, 12 Gray, 244 (1858).