273 Pa. 110 | Pa. | 1922
Opinion by
Plaintiff sued for the value of certain glazed kid, which he alleged had belonged to him, but defendant had
At the trial of the case, following the practice approved by us in Buehler v. United States Fashion Plate Co., 269 Pa. 428, plaintiff offered, and there was admitted in evidence, certain of the averments of the statement of claim, which had not been denied by the affidavit of defense, and these may be summarized as follows: John B. Evans & Co., sold to the legal plaintiff, I. M. Gurdus, sixty-two cases of glazed hid, the former agreeing to deliver it to the latter in Philadelphia, upon payment being made therefor; for the purpose of obtaining the purchase price Evans & Co. drew its draft upon Gurdus, at Moscow, Russia, defendant purchased it and the warehouse receipt for the kid, and forwarded the draft to its correspondent, the Moscow Industrial Bank of Moscow, Russia; accompanied by its, defendant’s, non-negotiable certificate to the effect that against the said draft it held the warehouse receipt, which it would deliver to the purchaser of the kid upon payment of the draft, and authorized its said agent to collect the amount of the draft from Gurdus, for the account of defendant, and upon its payment to deliver the draft and certificate to him; Gurdus sold his interest in the agreement of sale and kid to Herman Solnicki, the use-plaintiff; upon the receipt of the draft by the Moscow Industrial Bank it demanded payment thereof from Gurdus, use-plaintiff paid to it the full amount due, this the bank accepted, as agent for defendant, and delivered to use-plaintiff the draft and a receipt in full for the payment, as it had been directed by defendant to do; thereafter use-plaintiff settled in full with Gurdus, who from that time had no interest in the agreement of sale or the kid; and use-plaintiff demanded and defendant refused to deliver the warehouse receipt to him.
Under the facts thus conclusively established (Gillespie v. Pennsylvania Co., 272 Pa. 393), it is clear plaintiff
Its first contention is that the court below erred in refusing to grant its motion for a continuance until the return of certain letters rogatory, which it had forwarded to Russia to take the testimony of twenty witnesses supposed to be living there and acquainted with facts important to the defense. The single question for us on this phase of the case is, Did the court below abuse its discretion in refusing the motion? First National Bank v. Title Guarantee and Surety Co., 238 Pa. 75; Davidson v. Davidson, 262 Pa. 520. We cannot say it did. No attempt was made to comply with the rule of court, requiring a party seeking a continuance to state by affidavit what it expects to prove by the witnesses, in order that his opponent may have an opportunity to admit what they would say, if present, and thus avoid the supposed necessity for continuing the case. So, also, the application was objectionable because asking for a continuance for an indefinite time. The proper course to pursue would have been to ask it for a definite time, with leave to renew the application; but this was not done, and though the court below might well have exercised its discretion, in view of the situation believed to exist in Russia, and granted the continuance for a fixed period, it was not obliged to do more than decide the application made, and hence we cannot say it abused its discretion, especially as the letters rogatory had been outstanding nearly five months, and nothing had been heard from them during that time.
Subsequently, on July 27, 1921, a communication was received, purporting to come from the “Chief of the Department of Economy and Law” of the Russian Socialist Federated Soviet Republic, in which it is stated that
Defendant says, in the next place, that the draft, as forwarded to its correspondent in Moscow, included the purchase price not only of the sixty-two cases of kid, but also of sixty-four others, which had been assigned by Gurdus to use-plaintiff and by the latter to one Heller, and the accompanying certificate also included both transactions; that use-plaintiff was not entitled to more than the sixty-two cases and Heller to the balance, and the right of action cannot thus be split without defendant’s consent. These averments of fact are true, but are only a part of the applicable facts; and moreover the legal conclusion stated is not accurate. There were two distinct sales of two separate invoices of kid, at different prices and at different times, and they were held by the warehouse in separate parcels, each subject to delivery on the surrender of its individual warehouse receipt. That Evans & Co., for its convenience, drew the draft for the two together and defendant, for its convenience, sent but one certificate covering the two warehouse receipts, could not defeat Gurdus’s right to separately pay the purchase price of each invoice and then obtain the proper warehouse receipt therefor, or to as
Defendant’s final claim is that the court below should have taken judicial notice of the fact that the Kerensky government, — which was in power in Russia at the time the leather was sold and had been recognized by this government, — was overthrown on November 7, 1918, by the Soviet Republic, which was not recognized by us; the change resulting, at some time thereafter, in so paralyzing the judiciary of Russia as to hinder defendant from forcing its correspondent to account for the money paid, though our government is not shown to have recognized that status as existing. Under such circumstances no court could judicially notice this alleged situation. The evidence shows that up to the time the money was paid,
Assuming, but not admitting, that the court could take judicial notice of the fall of the Kerensky government and of the control obtained by the Soviet Republic, and that, by reason thereof, the Moscow Industrial Bank would not be able to honor defendant’s checks drawn against its account, it must necessarily follow also that defendant was bound to take notice of these facts and act accordingly. A court does not take judicial notice of such matters because it has some superior knowledge in regard thereto, but only because they are so certainly true and so well known that everybody is supposed to take notice thereof: 15 R. C. L. 1058, 9. This being so, defendant knew of the facts in relation to the fall of the one government and the control by the other, as early as November 7,1917, and it could and should have attempted to recall the agency of the Moscow Industrial Bank or notify it not to accept and plaintiff not to pay the draft. It did none of these things; on the contrary, by drawing checks on the account after that date, it affirmed plaintiff’s right to pay the draft and receive it and the certificate, unless indeed defendant so acted in ignorance of the situation in Russia, and if it was ignorant, then the facts were not so certain and well known as to cause either the court or plaintiff to take notice thereof; hence
Belying upon its erroneous conclusion that the court below should have taken judicial notice of the alleged facts above set forth, appellant thus states its supposed defense growing thereout: “The payment to the Moscow Industrial Bank, if made, did not have the legal effect of a payment to the Philadelphia National Bank; because there can be no agency to receive without a liability to account; and there can be no liability to account when no government exists which will or can enforce such liability.” Aside from that which has already been said, this novel and remarkable contention, if otherwise sustainable, would still have to be overruled because it overlooks the difference between a “liability to account” and an opportunity to compel an accounting. It would be a strange conclusion, involving little less than a travesty of justice, if it were held where an agent, authorized to receive payment of an account, in fact receives it by virtue of the authority thus given, that subsequent difficulties, which operated to prevent the principal from collecting, from its agent, the money thus paid, but for which the innocent payor is not responsible and of which he had no knowledge, should result in his bearing the loss, rather than the principal who clothed the agent with authority. This would be in direct violation of the fundamental rule that if one of two innocent parties must suffer, he who clothes the agent with authority to receive, must himself bear the loss: Penna. Railroad Company’s App., 86 Pa. 80; Wolfgang v. Shirley, 239 Pa. 408. To affect plaintiff, defendant would have had to prove, not only that Gurdus knew of the fall of the Kerensky government, but also at least that he had reason to believe the money would be lost to defendant if he paid it to the Moscow Industrial Bank; of this, however, there is nothing in the pleadings or the proofs.
The judgment of the court below is affirmed.