ed by a stipulation that a contract made in the state should be governed by the laws of another state, though it is obvious that in such a case there would be much less reason for denying effect to such a stipulation than in a case where the statutory provision is one that cannot be directly and expressly waived. Other cases which have refused, upon the ground of public policy, to give effect to such a stipulation, are cited in subsequent subdivisions.

But, even assuming that a statute of the state in which a contract of insurance is consummated, relating to the rights and obligations of the parties, is such a part of the public policy of the state that it will be applied by a court of that state, notwithstanding a stipulation attempting to subject the contract to the laws of another state, it does not necessarily follow that such a stipulation will not be effective to subject the contract to a law of the state designated by the parties, which imposes additional rights or obligations upon the parties, that are not opposed to or inconsistent with such statute of the forum.

In Phinney v. Mutual L. Ins. Co. 67 Fed. 493, it was held that a contract of life insurance made by a New York corporation in Washington, which stipulated that it was made subject to the charter of the company and the laws of New York, was subject to the New York statute re'quiring notice as a condition of forfeiture for nonpayment of premiums. The United States Supreme Court, upon appeal in the latter case (178 U. S. 327, 44 L. ed. 1088, 20 Sup. Ct. Rep. 906), said that the question presented was an important and difficult one, but did not undertake to decide it, the case being reversed on other grounds. Mutual L. Ins. Co. v. Sears, 178 U. S. 345, 44 L. ed. 1096, 20 Sup. Ct. Rep. 912, and Mutual L. Ins. Co. v. Hill, 178 U. S. 347, 44 L. ed. 1097, 20 Sup. Ct. Rep. 914, were disposed of in the same manner; but upon a subsequent appeal in the last case it was held by the circuit court of appeals (55 C. C. A. 536, 118 Fed. 708) that the stipulation was sufficient to subject the policy to the New York statute. The latter decision was in turn reversed in 193 U. S. 551, 48 L. ed. -24 Sup. Ct. Rep. 538, for the reasons explained in III. k, intra.

As already pointed out, it was assumed in Mutual L. Ins. Co. v. Cohen, 179 U. S. 262, 45 L. ed. 181, 21 Sup. Ct. Rep. 106, that such a stipulation, if it related to the contract as distinguished from the application, would be sufficient to make the New York statute applicable, although the contract was made elsewhere.

A court may, of course, upon the ground of the public policy of the forum, refuse to enforce a contract of insurance that is valid according to the law of the place where it is made and performable.

Thus, in Swing v. Munson, 191 Pa. 582, 58 L. R. A. 223, 43 Atl. 342, the court said that, assuming that the contract, because made in Ohio, could have been enforced in the courts of that state, it did not follow that the courts of Pennsylvania would lend their aid to the enforcement of a contract in violation of its own policy as declared in its laws.

So. a wagering policy of insurance cannot be enforced in Pennsylvania, although valid in the state where it was executed, and is, by its terms, to be paid. McDermott v. Prudential Ins. Co. 7 Kulp, 246. The policy was held to

be a wagering policy because the beneficiary had no interest in the life of the insured.

It must be remembered, in applying the rules for determining the law governing contracts of insurance, that the Federal courts, while bound by local state statutes, are not bound by the decisions of local state courts upon questions of general commercial law. Thus, the United States Supreme Court, in Washburn & M. Mfg. Co. v. Reliance Marine Ins. Co. 179 U. S. 1, 45 L. ed. 49, 21 Sup. Ct. Rep. 1, said, with reference to a policy of marine insurance, that, while it was a Massachusetts contract, its construction depended on questions of general commercial law, in respect of which the courts of the United States are at liberty to exercise their own judgment, and are not bound to accept the state decisions as in matters of purely local law.

b. Local statutes relating to foreign insurance companies and their agents.

It is not the purpose of this subdivision to discuss the question as to the extent of the constitutional power of a state legislature to regulate business of insurance by foreign corporations, or the question of the extent to which this power has been exercised. As stated in 1., supra, however, the principles gov erning the choice of laws are sometimes invoked-in reality as canons of statutory construction to aid in determining the question insurance company, involving foreign or interwhether a particular transaction by a foreign state elements, falls within a statute which is general and neutral in its terms so far as its

applicability to such contracts is concerned.

Thus, in Columbia F. Ins. Co. v. Kinyon, 37 N. J. L. 33, the court said that while it would be competent, by legislation, to invalidate in the courts of New Jersey an insurance contract made in good faith in another state on property located in New Jersey, it would be so contrary to the comity which has been observed between the states, that such an intention will not be imputed to the lawmakers unless the language used so clearly expresses that purpose as to bear no other reasonable interpretation. It was accordingly held in this case that there was nothing in the New Jersey statute which operated as an exception to the general rule that the law of the place where the contract is made or to be performed is to govern as to the nature, validity, construction, and effect of such contract. The statute here referred to declared that it should not be lawful for any company chartered by another state to transact any business connected with insuring property situated in New Jersey, without conforming to certain requirements. It was held that the statute did not apply to a contract of insurance made by a foreign corporation in another state upon property in New Jersey.

The broad constitutional power which is conceded in the foregoing case has been expressly asserted in other cases. Thus, for instance, it is held in Swing v. Munson, 191 Pa. 582, 58 L. R. A. 223, 43 Atl. 342, that a contract with a foreign insurance company, made in another state in which it is valid, but in direct violation of the laws of the state in which the property is situated and in which the insured re sides, will not be enforced in the latter state.

Upon the other hand, however, it was intimated in Western Massachusetts Mut. F. Ins.

Seamans v. Knapp-Stout & Co. Co. 89 Wis 171, 27 L. R. A. 362, 61 N. W. 757.

Seamans v. Temple Co. 105 Mich. 400, 28 L. R. A. 430, 63 N. W. 408, is to the same effect. When, however, the statute is general and neutral in its terms, so far as its applicability to transactions involving foreign elements is concerned, the courts are left free to apply the general principles relating to the choice of laws, though in such cases these principles are really applied as canons of statutory construction. This is illustrated by the following cases, which have either assumed, or expressly held, that statutes, which in general terms prescribe conditions upon which foreign insurance companies may transact business within the state, without expressly specifying what acts shall constitute the transaction of business within the state, apply only when the contract is consummated within the state, without reference to the residence of the insured, the location of the insured's property, or the place where the application is received, or the place where other preliminary steps leading to the consummation of the contract are taken. Northwestern Mut. L. Ins. Co. v. Elliott, 7 Sawy. 17, 5 Fed. 225 (II. d, 4, (a), (b)); Marine Ins. Co. v. St. Louis, I. M. & S. R. Co. 41 Fed. 643; State Mut. F. Ins. Co. v. Brinkley Stave & Heading Co. 61 Ark. 1, 29 L. R. A. 712, 31 S. W. 157 (II. d, 2); Franklin Ins. Co. v. Louisville & A. Packet Co. 9 Bush, 590 (II. d, 4, (c)); Ford v. Buckeye State Ins. Co. 6 Bush, 133, 99 Am. Dec. 663 (II. d, 4, (b)); Reliance Mut. Ins. Co. v. Sawyer, 160 Mass. 413, 36 N. E. 59 (II. d, 4, (c)); Com. Mut. F. Ins. Co. v. William Knabe & Co. Mfg. Co. 171 Mass. 265, 50 N. E. 516 (II. d, 3); Haverhill Ins. Co. v. Prescott, 42 N. H. 547, 80 Am. Dec. 123; Connecticut River Mut. F. Ins. Co. v. Way, 62 N. H. 622; Northampton Mut. Live Stock Ins. Co. v. Tuttle, 40 N. J. L. 476 (II. d, 2); Hartford Steam Boiler Inspection & Ins. Co. v. Lasher Stocking Co. 66 Vt. 439, 29 Atl. 629 (II. d, 2); Baker v. Spaulding Bros. 71 Vt. 169, 42 Atl. 982 (II. d, 3); Seamans v. Knapp-Stout & Co. Co. 89 Wis. 171, 27 L. R. A. 362, 61 N. W. 757 (supra, II. b).

So, it has been held, or assumed, that the applicability of a statute forbidding the transaction of insurance business or the taking of risks within the state, except upon certain conditions, depended upon the place where the contract was consummated. Wiestling v. Warthin, 1 Ind. App. 217, 27 N. E. 576 (II. d, 4, (c)); Stevens v. Rasin Fertilizer Co. 87 Md. 679, 41 Atl. 116 (II. d, 4, (c)); Eureka Ins. Co. v. Parks, 1 Cin. Sup. Ct. Rep. 574.

In Hyde v. Goodnow, 3 N. Y. 266 (II. d, 2), it was held that a statute of Ohio declaring that no policy of insurance shall be "signed, issued, or delivered in this state, nor on any property of any kind situated in this state," by a foreign corporation, until compliance with the conditions therein prescribed, did not apply to a contract of insurance consummated in New York upon property in Ohio. In this case the policy was mailed from New York directly to the insured, so that the delivery in legal effect took place in New York. It would seem that, even assuming that the contract had been technically made in New York, it would have come within the express terms of the statute if it had been delivered in Ohic, though, as shown in II. d, 4, supra, the place of the delivery does not necessarily determine the place where the contract is made.

In Huntley v. Merrill, 32 Barb. 626 (II. d, 2), it was held that a statute of Pennsylvania, declaring that foreign corporations should not be insureres in any case within the state against loss by fire upon property within the state, did not apply to a contract made in New York upon property in Pennsylvania.

In Lamb v. Bowser, 7 Biss. 315, 372, Fed. Cas. Nos. 8,008, 8,009 (II. d, 2), it was held that an Indiana statute, declaring that foreign corporations shall not enforce in any courts of the state any contract made by their agents before compliance by the latter with certain conditions, did not apply where the contract was consummated in Illinois by the mailing of a policy directly to the insured, although the application was received by a local agent in Indiana.

The foregoing citations do not exhaust the authorities upon the point of statutory construction involved, but they illustrate the strong tendency on the part of the courts to construe the statutes, if possible, in harmony with the principles of comity existing between the different states.

In most of the foregoing cases, in which the applicability of the statute imposing conditions upon the right of a foreign insurance company to contract has been made to turn upon the question as to where the contract was consummated, the question arose in a court of the state which had imposed the conditions; but in Wood v. Cascade F. & M. Ins. Co. 8 Wash. 427, 36 Pac. 267, it was held by the supreme court of the state of Washington that, the contract of insurance having been made in New York in violation of the statute of that state with reference to foreign insurance companies, and being therefore invalid in New York, it could not be enforced in Washington.

So, in Ford v. Buckeye State Ins. Co. 6 Bush, 133, 99 Am. Dec. 663 (II. d, 4, (b)), a court of Kentucky refused to entertain an action upon premium notes because the contract was made in Indiana by an Ohio corporation, and the local agent had not complied with the requirements of the Indiana statute. So, while Hyde v. Goodnow, 3 N. Y. 266; Huntley v. Merrill, 32 Barb. 626, and Seamans v. Knapp-Stout & Co. Co. 89 Wis. 171, 27 L. R. A. 362, 61 N. W. 757, held that the statutes of a state (other than that in which the court was sitting), prescribing the conditions upon which insurance companies might do business, did not govern, the decisions are upon the ground that the contract was not made in the state in which the statute was enacted, and it was apparently assumed that, if it had been, the statute would have been applied. When, however, the statute of a state expressly extends to contracts some of the preliminary steps of which were taken in the state, though consummated in another state, it is not so clear that the courts of the latter state, or of a third state, will enforce the statute.

In Eureka Ins. Co. v. Parks, 1 Cin. Sup. Ct. Rep. 574, which was an action in Ohio for a premium on a policy issued by an Ohio corporation upon property in Indiana, the court said that, as there was nothing illegal in the contract, so far as the laws of Ohio were concerned, its courts would not refuse to enforce the action, even if the law of Indiana should declare the contract void because the application was transmitted through a resident of Indiana who had not complied with the Indiana statute relating to the agents of foreign insurance com

contract was made in Pennsylvania, the domicil of the company; but the Pennsylvania statute was applied, not because Pennsylvania was the place where the contract was made, but because it was the place where it was performable.

It must be remembered, however, that any statute relating to insurance, may, by language adopted for that purpose, be expressly made a limitation upon the power of the corporation, which will accompany it wherever it may contract. The cases above cited are not exhaustive upon the point of statutory construction here suggested. They are cited in this connection merely for the purpose of showing and illustrating that the ordinary effect and operation of the principles governing the choice of laws with respect to insurance contracts may be interfered with by a statute which goes to the power of the insurer to contract.

d. Law of place of performance.

The United States Supreme Court, in the case of Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. ed. 245, lays down the following rules for determining the governing law of a contract:

1. "Matters bearing upon the execution, the interpretation, and the validity of a contract are determined by the law of the place where the contract is made."

2. "Matters connected with its performance are regulated by the law prevailing at the place of performance."

3. "Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought."

Though the contract involved in that case was not an insurance contract, it is not apparent why the rules there laid down are not applicable to insurance contracts. In the light of these rules, which, in substance, are declared in many other cases, it would seem that too little attention has been paid to the claims of the law of the place of performance to consideration as the governing law with respect to some of the matters arising in connection with insurance contracts.

The Texas supreme court, in Fidelity Mut. Life Asso. v. Harris, 94 Tex. 25, 57 S. W. 635 (II. d, 4, (a), (b)), however, recognizes the claims of the law of the place of performance, as distinguished from the law of the place where the contract is made. In that case the court assumed that the question as to the applicability of a statute of the domicil of the insurance company, to the effect that a misrepresentation should not avoid the policy unless material, depended upon the question whether or not the contract was performable in that state. It is true that the court proceeded to determine the question where the contract was made, but this was because of the principle that the contract is presumably performable at the place where it is made, unless a different place of per

In Ruse v. Mutual Ben. L. Ins. Co. 23 N. Y. 516, it was held that the question whether it is essential to the validity of a policy obtained by one person for his own benefit upon the life of another, that the party obtaining the policy shall have an interest in the life insured, was to be determined by the law of New Jersey, notwithstanding it is stated that the contract was actually made between the plaintiff and agents of the insurance company in Georgia, it appearing that the company was incorporated in New Jersey and that the policy purported upon its face to have been executed in New Jersey. The court said that the lex fori governs as to the remedy or remedies for enforcing the contract, but not as to its construction, or the legal rights arising under it; that such usually depend upon the law of the place where the contract is to be performed, although, where there is anything in the circumstances to show that the parties had especially in view the law of the place where the contract is made, that law will govern. The court further said that it saw nothing in the present case to indicate that the parties treated with special reference to the law of Georgia; and that, as no other place was mentioned, payment was, of course, to be made in New Jersey, where the principal office of the company was located; the contract was to be performed there, and, hence, from the general principle adverted to, the validity of the contract, and the rights and obligations of the parties under it, must depend upon the law of New Jersey.

In Rodgers v. Mutual Endowment Assessment Asso. 17 S. C. 406, the local agent of a foreign assessment association received an application, by a resident of South Carolina for membership in the association, under an agreement that the amount paid by the applicant should be returned to him in the event his application was rejected. The rules of the association required proof of death claims to be made at the home office, when an assessment was to be made, and the claims paid there. It was held that, assuming that the applicant had become a member of the association, the cause of action against the association for the benefit after his death did not arise in South Carolina, but within the state where the home office of the association was located. The decision is upon the ground that the contract was to be performed at the home office by an assessment upon the members, and the payment of the proceeds of the assessment.

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The place of performance will ordinarily be deemed the situs of an insurance contract, unless the parties determine otherwise. ley v. Metropolitan L. Ins. Co. 170 Mass. 274, 49 N. E. 438 (II. e).

In Expressman's Mut. Ben. Asso. v. Hurlock, 91 Md. 585, 46 Atl. 957 (II. d, 4, (c), the court held that, even if the contract in question be deemed to have been made in New York, the home office of the association, it was performable in Maryland, and under the second rule stated in the Scudder Case, the rights of the parties must be determined by the law of Maryland. The particular question in this case was as to the persons entitled to the proceeds of the