210 F. 810 | 2d Cir. | 1913
(after stating the facts as above). The question presented to this court involves the right of the drawee of a bill of exchange to recover from an innocent payee the money paid
The trial judge felt bound by the decision on demurrer (Hannay v. Guaranty Trust Co. [C. C.] 187 Fed. 686) to direct a verdict for the plaintiffs. But the facts as developed at the trial were essentially different, and the case was materially changed. The law of England was not before the court on the hearing of the demurrer because not pleaded, and no proof of that law had been presented. The complaint under which the trial took place was an amended complaint, and not the one which was before the court on demurrer and the material difference in the state of the pleadings differentiated the case at trial • from the case upon demurrer.
Courts do not take judicial notice either of the written or unwritten law of a foreign country. But the defendant in its answer to the amended complaint pleaded the English Bills of Exchange Act of 1882, and averred that there was and still is a uniform general and well-known custom or usage among bankers and cotton dealers in the United States and in England-, to the effect that when bills of exchange are drawn against cotton goods sold for shipment to foreign ports, and words are inserted in said bills similar to those in the bill in question (“Charge the same to account of R g°^ ^ bales of cotton”), such words do not change the unconditional character of the order to pay. It also averred that this usage is a part of the law merchant both of the United States and of England.
“TRe written foreign law may be proved, by a copy of tbe law properly authenticated. Tbe unwritten must be by the parol testimony of experts.”
“Tlie law of a foreign country and its commercial usages are proved here by calling its lawyers and merchants and interrogating them. That has been done in this case, with a result which certainly warrants the conclusion that the proof is overwhelmingly the one way.”
The same statement can be made in the present case. The proof in this case also “is overwhelmingly the one way.” The plaintiffs have failed to contradict the defendant’s expert as to what the law of England is, and they have made no application to take further proofs. The testimony establishes that the instrument in suit is an unconditional bill of exchange under the law of England; that its acceptance by the Bank of Liverpool was absolutely unconditional; that the presenter of a bill of exchange to the drawee for acceptance does not, under the law of England, impliedly warrant the genuineness of an accompanying document or attached bill of lading; that the duty to investigate and determine to the satisfaction of the party ultimately liable the genuineness of documents accompanying the bill of exchange (in this case the bill of lading) rests upon the person who authorizes the acceptance, in the case before us the plaintiffs herein; that under the law of England the Bank of Liverpool could not recover the amount paid by it in a suit against the payee, or in a suit against the original presenter, _ on the theory of money paid under a mistake of fact, or upon any other theory known to the law of .England. The expert supported his testimony by references to the cases decided in the English courts, and among them was the famous case of Price v. Neal, 3 Burr. 1354, decided in 1762, and which he stated was in principle the law of England to-day, and the case of Leather v. Simpson, 40 L. J. Ch. 177, s. c., L. R. 11, Eq. 398, which he declared had, been the law of England for 40 years. In Price v. Neal, supra, it was decided that when one accepted and paid a forged bill of exchange, upon discovering the forgery he could not recover the money from the innocent indorsee to whom he had paid it. The court held it was incumbent
One cannot destroy the effect of the uncontradicted testimony of a qualified expert in foreign law by the mere criticism of that testimony by, counsel or by references to foreign statutes and foreign decisions. Foreign law cannot be proved by the citation of statutes and decisions made by counsel. If that can be done, then the statement that courts cannot take judicial notice of the foreign law is without meaning or significance. But in this case it was expressly stipulated between .the parties that:
¡‘Any printed decision of any court in England material to the issues herein may be received in evidence at the trial upon reference to the title of the cause in which such decision was made and to the volume of reports in which it is reported, without further authentication, and without calling any expert to testify as to the law of England.”
Still, no decision was introduced in evidence under this agreement which has convinced us that the testimony of the English barrister was mistaken as to the law of that country on the question involved in this 'case.
Counsel laid emphasis upon the character of the action, and that the plaintiffs are simply seeking to recover back money paid under a mutual mistake. But they have introduced no evidence to show that under English law A. can recover back from B. money which has been paid under a mutual mistake, where the mistake made related to a fact which, as between A. and B., the law made it the duty of A. to know.
The judgment is reversed, and a new trial ordered.