contract will not be held usurious, if not so by the laws of such state where it is to be performed.-Andruss v. People's Building, Loan & Saving Ass'n, 36 C. C. A. 336, 94 Fed. 575.

[d] (U. S. C. C., Ala., 1899) Parties to a loan by a corporation of one state to a resident of another, to be paid to the borrower in his own state, and secured by mortgage on real estate there situated, will be presumed to have contracted with reference to the laws of the state of the lender, where repayment of the principal of the debt is to be there made; and the question whether the contract is usurious is to be determined by the law of that state, especially if, under such law, it is valid, while under the law of the state of the borrower it is invalid.-Hieronymus v. New York Nat. Building & Loan Ass'n, 101 Fed. 12, affirmed (1901) 46 C. C. A. 684, 107 Fed. 1005. [e] (Mich. Sup. 1900) A loan made by a building association, secured by mortgage on property in another state, which by its terms provides for the payment to be made in the state of the association, yet which the parties understand will be paid to the local agent in the state where the property is situated, will be governed by the laws of the latter state as to interest.— National Mut. Building & Loan Ass'n v. Burch, 82 N. W. 837, 124 Mich. 57, 83 Am. St. Rep. 311.

[f] (Miss. Sup. 1901) Where a foreign corporation loaned money to a resi dent of the state on property in the state, and payments of interest were made to a local board of such association established in the state, a stipulation in the contract that payment was to be made in the state of the domicile of the association will not take the contract out of the operation of the laws of the state; such stipulation being made merely to evade the usury laws of the state.-Shannon v. Georgia State Building & Loan Ass'n, 30 South. 51, 78 Miss. 955.

[g] (Miss. Sup. 1902) A foreign building and loan association, having no office or general agent in Mississippi, but having special agents in various towns throughout the state, with authority to solicit subscriptions for stock, receive applications for loans, and receive payments of dues, interest, and premiums, loaned money to a shareholder, residing in Mississippi, on property located there, the contract providing that payments should be made at the association's office in the foreign state. Held, that the contract, notwithstanding the recital as to the place of payment, was a Mississippi contract, and governed by the laws of Mississippi as to usury.-National Mut. Building & Loan Ass'n of New York v. Brahan, 31 South. 840.

[h] (Miss. Sup. 1902) A loan by a Georgia building and loan association made to a citizen of Mississippi, and secured by mortgage on land in that state, was governed by its laws with respect to usury, where interest was payable to local boards in the state according to the association's by-laws, notwithstanding a provision in the contract that payment was to be made in the state of the corporation's domicile.-Georgia State Building & Loan Ass'n v. Shannon, 31 South. 900.

[i] (Pa. Sup. 1896) A resident of Pennsylvania, on application made in that state to an agent of a New York building and loan association, became a member thereof, and obtained a loan from it, giving notes and bond therefor, secured by mortgage on Pennsylvania lands; all of the instruments describing the association as of "Syracuse, N. Y.," and declaring the notes payable at its office there. Held, that the contract was not governed by the usury laws of Pennsylvania.-Bennett v. Eastern Building & Loan Ass'n of Syracuse, 35 Atl. 684, 177 Pa. 233, 34 L. R. A. 595, 55 Am. St. Rep. 723.

[j] (Pa. Com. Pl. 1895) A building and loan association, incorporated under the laws of the state of New York, had a charter authority to collect from its members all loans made, interest, premiums, and fines. It filed the necessary certificate in the office of the secretary of the state of Pennsylvania, authorizing it to do business in Pennsylvania. An application for a loan was made through a local agent in Pennsylvania, approved by a local board, and the contract was completed, stipulating for a higher rate of interest than was allowed by the laws of Pennsylvania. The contract was made, and was to be performed, in New York. Held, that it was not usurious.51 C.C.A.-21

National Building & Loan Ass'n v. Riley, 1 Lack. Leg. N. 297; 16 Pa. Co. Ct. R. 444, 4 Pa. Dist. R. 663.

[k] (Pa. Com. Pl. 1895) A contract which stipulates for a rate of interest which is not higher than that by the laws of the place of performance is not usurious, though it exceeds the rate allowed by the laws of the place where it is made.-National Building & Loan Ass'n v. Riley, 1 Lack. Leg. N. 297, 16 Pa. Co. Ct. R. 444, 4 Pa. Dist. R. 663.

[1] (Pa. Com. Pl. 1897) Where a Maryland building and loan association requires a premium from its members on loans, and such premium is not usury by the Maryland law, its payment will be enforced by a Pennsylvania court against a Pennsylvania member, who has agreed to be bound by the charter and by-laws, the by-laws providing that money due the association shall be payable in Maryland.-Baltimore Building & Loan Ass'n v. Titlow, 19 Pa. Co. Ct. R. 518.

[m] (Pa. Com. Pl. 1899) The usury laws do not apply to a contract for borrowing money from a New York building association providing for payment in New York, though made in Pennsylvania.-Elmira Mut. Bldg. Loan Ass'n v. Wahoo Tribe, No. 119, I. O. R. M., 9 Kulp, 487.

[n] (S. C. Sup. 1899) A foreign loan association stock certificate made all payments to the association payable at the home office, and the by-laws provided that applications for loans were to be submitted to the directors at the home office; that interest on loans was to be paid monthly in advance, with dues; that the borrower who paid his loan before maturity could withdraw his stock or continue it as an investment, and in repaying the loan he forfeited the premium and interest thereon. Held, that the contract of loan was governed by the law of the state where the corporation was organized, and in which it was to be performed, as to the rate of interest to be paid, and not by that of the state where the action was brought.-Interstate Building & Loan Ass'n of Atlanta v. Powell, 33 S. E. 355, 55 S. C. 316.

[o] (S. C. Sup. 1901) Plaintiff, a Tennessee building association, exacted usurious interest from defendant, and brought an action to foreclose a mortgage securing the loan in the courts of South Carolina. Held, that the courts of South Carolina were not prevented by the rule of comity as to the construction of a contract made in another state from enforcing a law of South Carolina forfeiting the interest on usurious loans.-Carpenter v. Lewis, 38 S. E. 244, 60 S. C. 23.

[p] (Tenn. Ch. App. 1897) Usury cannot be urged against a Minnesota contract sought to be enforced in Tennessee, where it is in accordance with the laws of Minnesota.-United States Saving & Loan Co. v. Miller, 47 S. W. 17; Peck v. Miller, Id.

[q] (Tex. Sup. 1897)

A foreign loan association, allowed by the laws of the territory where it was organized to take any amount of premiums or any rate of interest on loans, obtained a permit to do business in Texas, and made a loan to a citizen thereof, which, under Texas laws, was usurious, secured by deed of trust on lands in Texas. Held, that a provision in the loan contract that the loan was to be paid in the territory of its domicile was a mere device to evade the usury laws of Texas, and not a bona fide provision for performance in the foreign territory, and therefore the contract was governable by the laws of Texas.-Building & Loan Ass'n of Dakota v. Griffin, 39 S. W. 656, 90 Tex. 480.

[r] (Va. Sup. Ct. App. 1895) Where a building association lends money in Virginia to a citizen of that state, and the loan is secured by land located there, but the bond is made payable in New York, the contract is a New York contract; and, if it is legal in New York, it will be enforced in Virginia though usurious under the laws of Virginia.-National Mut. Building & Loan Ass'n v. Ashworth, 22 S. E. 521, 91 Va. 706.

[s] (Va. Sup. Ct. App. 1896) A bond executed in Virginia and payable in New York is governed by the law of New York, and not of Virginia, as regards the question of usury.-Nickels v. People's Building, Loan & Saving Ass'n, 25 S. E. 8, 93 Va. 380.

[t] (Va. Sup. Ct. App. 1898) A loan of money by a New York building association in Virginia to a citizen of that state, on land located there, but

made payable in New York, is a New York contract; and the question of usury is to be determined by its laws.-Ware v. Bankers' Loan & Investment Co., 29 S. E. 744, 95 Va. 680, 64 Am. St. Rep. 826.

[u] (Va. Sup. Ct. App. 1898) The fact that a building association incorporated under the laws of New York, capable of contracting in any jurisdiction, and authorized by its charter and by-laws to enter into a contract made usurious in Virginia, selects its home state as the place where a loan in Virginia is to be made payable, does not of itself show that the place of performance was determined on as a mere device to evade the usury laws of Virginia.-Ware v. Bankers' Loan & Investment Co., 29 S. E. 744, 95 Va. 680, 64 Am. St. Rep. 826.

[v] (Va. Sup. Ct. App. 1898) A contract made in Virginia with a building association provided for payment of premiums, dues, fines, etc., to the association in New York. Held, that such contract, being performable in New York, and valid under its laws, would not be usurious, though usurious under the laws of Virginia.-People's Building, Loan & Savings Ass'n v. Tinsley, 31 S. E. 508, 96 Va. 322.

6. Location of Security for Loan.

[a] (Ky. App. 1897) A loan made by a New York building and loan association, secured by a mortgage on real estate in Kentucky, is governed by the usury laws of Kentucky, though made payable in New York.-Pryse v. People's Building, Loan & Saving Ass'n, 41 S. W. 574.

[b] (Ky. App. 1898) A resident of the state became a member of a Minnesota loan association, and a borrower. Lands in the state were mortgaged to secure the loan. The papers were forwarded to the Minnesota office, and from it the money was forwarded to the borrower. The note purported to have been made in Minnesota, was payable there, recited that it was made with reference to the laws of Minnesota, but was usurious under the laws of the state. Held, that the contract was to be performed in the state, the provision to the contrary being an attempt to evade the usury law.-Locknane v. United States Savings & Loan Co., 44 S. W. 977, 103 Ky.

265.

[c] (N. C. Sup. 1894) When the mortgagor and his land were in North Carolina, and he there applied for a loan to a Virginia association having a local board of managers and treasurer, and there executed the mortgage, the North Carolina usury laws apply, though the application was sent to the home office, and the money remitted from there, and the bond is payable there, and the local board and treasurer are styled agents, not of the association, but of the local members.-Rowland v. Old Dominion Building & Loan Ass'n, 18 S. E. 965, 115 N. C. 825.

[d] (N. C. Sup. 1895) In the enforcement of a mortgage on land, the usury law of the state in which is the land will govern, the security having been given for money to be used in the state, though payment of the loan in another state was provided.-Meroney v. Atlanta Building & Loan Ass'n, 21 S. E. 924, 116 N. C. 882, 47 Am. St. Rep. 841.

(113 Fed. 492.)

PITCAIRN v. PHILIP HISS CO.

(Circuit Court of Appeals, Third Circuit. February 5, 1902.)

1. APPEAL-ADMISSIONS-EVIDENCE.

No. 43.

Plaintiff's request to charge that the jury should not disallow all his bill because there are defects in the woodwork, but should deduct from that bill on this account what it would cost, under the evidence, to put the woodwork in as good condition as it should have been under the

contract, having been affirmed, is sufficient basis for the statement of the court in its charge that plaintiff admits there are defects in the woodwork, and has given evidence that they could be remedied at a cost of not over $500, so as to make it an admission.

2. SAME.

A party, by adopting and making part of its brief on appeal the statement of the court, in its opinion refusing new trial, wherein it was alleged that the evidence showed the woodwork could be put in condi tion for $500, admits there was evidence of defects.

8. ENTIRE CONTRACT.

A contract to decorate walls of room, do the woodwork therein, and furnish it for $5,200 is an entire contract.

4. CONTRACTS-SUBSTANTIAL PERFORMANCES QUESTION FOR JURY.

Whether there has been a substantial performance of a contract to decorate walls of a room, do the woodwork therein, and furnish it for $5,200, so as to allow recovery thereon, is a question for the jury; there being evidence of defects in the woodwork which it would take $500 to remedy.

5. SAME-INSTRUCTION.

Instruction to jury, in action on entire contract for decorating room, doing woodwork, and furnishing it, that the defective woodwork would not preclude a recovery, if the contract was "otherwise" substantially performed, takes from the jury the question of substantial performance of the entire contract.

In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

Wm. W. Smith, for plaintiff in error.

Wm. M. Hall, Jr., for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.

GRAY, Circuit Judge. In this case the defendant in error, which was the plaintiff below, sued for a balance claimed to be due under five written contracts for decorating, furnishing, and refitting the dwelling house of plaintiff in error, who was the defendant below, and also for the value of some extra work and articles not included in the written contracts. These contracts were in the form of letters written by plaintiff below, promising to do certain work and furnish certain articles at a price stated therein, to each of which there is a written acceptance by the defendant below. Three of the letters are dated January 28, 1899, another dated July 14, 1899, and another without date, but accepted September 14, 1899. The offer in each of the letters covered different rooms in the house, or different articles of furniture, and in some cases the offer in each letter was divided into separate groups, stating an amount for which the material and work in each group would be furnished. In the contract with which we are here concerned, the letter accepted September 14, 1899, after making separate estimates for the office, library, billiard room, and son's room, contained the following:

"Daughter's Room. Walls and ceiling redecorated, woodwork and mantel (shutters not included) of maple (bird's-eye panels), curtains and furniture covers of damask selected, new rug, 2 bureaus, 1 bed (5′ 6′′) and bedding. 1 easy chair, 1 rocker, 2 small chairs, 1 work table (3x2) of bird's-eye maple, cost to be $5,200."

The learned trial judge properly instructed the jury that the five written contracts on their face were distinct, and were to be treated as

severable; "that is to say, although there might be a breach of performance in one of these contracts, yet, if the other contracts were substantially performed, the plaintiff would be entitled to recover the price or prices stipulated in the contracts thus substantially performed." He also correctly charged the jury that as these written contracts are divided into separate groups of articles or work, in each of which there is a fixed price of its own, these subdivisions in respect to performance or nonperformance are also to be treated as severable and distinct.

All the foregoing appears by the pleadings, and the bill of exceptions brings before us, as part of the record, the charge of the court, with the exceptions made to particular portions thereof. The assignments of error founded thereon are as follows:

"First. The court below erred in instructing the jury as follows, viz.: 'In respect to the defective woodwork, such defect would not preclude a recovery upon the contract which included that work, if the contract was otherwise substantially performed; but the defendant would be entitled to a deduction for the cost of repairing such defect, and the plaintiff would only be entitled to recover the contract price, less this deduction.'

"Second. The court below erred in this: that almost at the end of the charge to the jury the court, after having previously answered all the points submitted by defendant, and after having previously delivered to the jury the portion of the charge above set forth, affirmed plaintiff's fourth point, which point and the court's answer thereto are as follows: 'Fourth. That the jury should not disallow all of plaintiff's bill because there are certain defects in woodwork, but should deduct from that bill on this account what it will fairly cost, under the evidence, to put the woodwork in as good condition as it should have been under the contract.' 'This point is affirmed.' "Third. The court below erred in its charge to the jury in this: that the court, having previously affirmed defendant's fourth point, which point and the answer thereto are as follows: 'No one is obliged to accept defective and improper work, and, if new work is so constructed as to be so defective and improper as not in substantial performance of the contract therefor, the purchaser has a right to refuse to accept the same, and the contractor cannot, after such rejection, patch up or repair such defective and inferior work, and then compel the purchaser to accept the same; neither can he recover the contract price therefor, less the amount necessary to put such defective and improper work in proper condition.' 'This point is affirmed.'-yet subsequently in the charge the court affirmed plaintiff's fourth point as stated above, which point and the answer thereto are as follows: Fourth. That the jury should not disallow all of plaintiff's bill because there are certain defects in woodwork, but should deduct from that bill on this account what it will fairly cost, under the evidence, to put the woodwork in as good condition as it should have been under the contract.' This point is affirmed,'-plaintiff's fourth point and the answer thereto being inconsistent with and contradictory to defendant's fourth point and the answer of the court thereto, as above set forth."

The bill of exceptions contains no transcript of the testimony as a whole, or any portion of it, or any statement of what the testimony tends to prove, pertinent to the portions of the court's charge excepted

The assignments of error follow the exceptions, and the sole question raised thereby is as to the correctness with which the court instructed the jury in the particulars mentioned.

The plaintiff in error has stated in his brief that "on trial of the case plaintiff [below] admitted that the woodwork in the daughter's room was defective, and called witnesses, who testified that it would cost $500 to repair this defect," and in lieu of any testimony or evidence in the record to that effect, he relies, in the first place, upon the statement by the court in its charge, as follows: