It is said by an able writer that the bases often fail to distinguish between formal va lidity and essential validity, or between the making and the performance of the con tracts; and not infrequently it Is held, In respect of matters of essential validity, that the validity of a contract is to be determin ed by the law of the place where the con tract is made; J. B. Moore's note to Dicey, Conti. Laws 580, citing as instances Baxter Nat. Bank v. Talbot, im Mass. 213, 28 N. E. 163, 13 L. R. A. 52; In re Kahn, 55 Minn. 509, 57 N. W. 154.
A policy of life insurance which was de livered, and the first premium thereon paid in the state in which the assured resided, is governed by the laws of that state; Equita ble Life Assur. Soc. of U. S. .v. Winning, 58 Fed. 541, 7 C. C. A. 359 ; though the policy contained a clause that it was to be a con tract-under the laws of the domicil of the insurer, such clause being invalid when it sought to avoid the force of statutes of the state in which the insurance was taken; Mutual Ben. Life Ins. Co. v. Robison, 54 Fed. 580; and though signed by the insurer at the company's office in its home state; Knights Templar & Masons' Life Indemnity Co. it. Berry, 50 Fed. 511, 1 C. C. A. 561; and a policy issued by a York company upon an application signed in Missouri, where the first premium was paid, is subject to the Missouri statutes which cannot be waived by any stipulation of the contract; Equita ble Life Society v. Clements, 140 U. S. 226, ii Sup. Ct. 822, 35 L. Ed. 497. A domiciled Englishman effected three policies of insur ance on his life in a New York Company in favor of his wife and children. It was held that the intention of the parties must deter mine the law applicable, and that it was clearly intended here that the interests of the beneficiaries should be decided by the law of the domicil of the party insuring; 73 L. T. R. 60.
The validity of a contract cannot be se cured by apparently subjecting it to a law by which it is not properly governed ; Ameri can Freehold Land & Mtg. Co. v. Jefferson, 69 Miss. 770, 12 South. 464, 30 Am. St. Rep. 587; Arbuckle v. Reaume, 96 Mich. 243, 55 N. W. 808.
Where a New York statute proyided for notice as a condition of the forfeiture of a policy for nonpayment of premium by any life insurance company doing business in the state, and the application for a policy recited that it was subject to the charter of the com pany and the laws of New York, the policy issued on such application, which was de livered in Montana, was held not subject to the provisions of the New York act ; Mutual Life Ins. Co. of N. Y. v. Cohen, 179 U. S. 262,
21 Sup. Ct. 106, 45 L. Ed. 181; the court holding it to be a Montana contract and that the language of the statute was such as to make it applicable only to business done in New York; to the same effect ; Griesemer v. Ins. Co., 10 Wash. 202, 38 Pac. 1031.
A contract executed in England, where by an English corporation agrees to trans port a citizen of the United States to this country, is to be construed according to English law; The Majestic, 60 Fed. 624, 9 C. C. A. 161, 23 L. R. A. 746.
A federal court assuming jurisdiction of a controversy between the master and the seamen of a foreign vessel, under a foreign flag, growing out of a contract made in their own country, will administer relief, by comity, in accordance with the law of the flag of the vessel; Wilson v. The John Ritson, 35 Fed. 663. The question concern ing the ultimate responsibility of the owner for the master's acts and engagements, aris ing out of sea damages, as one of the inci dents of the voyage in the prosecution of foreign commerce, is to be determined by the law of the ship's home; Force v. Ins. Co. id. 767. See FLAG, LAW OF.
It is said that the failure to comply with local requirement as to form, not affecting the obligation of the agreement, will not in validate the Contract ; Whart. Confl. L. § A contract valid by the laws of the place where made, although not in writing, will not be enforced in the courts of a country where the Statute of Frauds prevails. But where the law of the forum and that of the place of the execution of the contract coin cide, it will be enforced, although required to be in writing by the law of the place of performance, because the form of the con tract is regulated by the law of the place of its celebration, and the evidence of it by that of the forum ; Pritchard v. Norton, 106 U. S. 135, 1 Sup. Ct. 102, 27 L. Ed. 104.
The general rule is that a defence or dis charge, good by the law of the place where the contract is made or is to be performed, is to be held of equal validity in every place where the question may come to be liti gated; Pritchard v. Norton, 106 U. S. 132, 1 Sup. Ct. 102, 27 L. Ed. 104, citing Story, Confl. L. § 331.