Bartoshesky v. Houston Trading Corp.

CourtUnited States State Supreme Court of Delaware
Writing for the CourtRODNEY, Judge.
Citation198 A. 697
Decision Date19 April 1938
PartiesBARTOSHESKY v. HOUSTON TRADING CORPORATION.
198 A. 697

BARTOSHESKY
v.
HOUSTON TRADING CORPORATION.

Supreme Court of Delaware.

April 19, 1938.


198 A. 697
198 A. 698

Action by the Houston Trading Corporation against Louis Bartoshesky on a trade acceptance. After the filing of the statement of claim in the court of common pleas, the cause was removed to the Superior Court, where defendant demurred to the statement of claim. Demurrer was overruled and judgment was entered on the demurrer and defendant brings error.

Affirmed.

WOLCOTT, Chancellor, and RODNEY and SPEAKMAN, JJ., sitting.

Marguerite Dugan Bodziak, of Wilmington, for plaintiff in error. Edmund S. Hellings and Ivan Culbertson, both of Wilmington, for defendant in error.

Supreme Court, No. 2, October Term, 1936.

Writ of Error to the Superior Court for New Castle County.

This case was based upon a trade acceptance in the following terms: "Protested 11/5/34

"L.W.S. N.P.

"New York, N. Y. Aug. 3rd, 1934 "On November 3, 1934

"Pay to the Order of Thynn Tab Company, Inc., New York, N. Y. Forty-eight dollars ($48.00).

"The obligation of the acceptor hereof arises from the purchase of goods from the drawer. 522918

"Trade Acceptance

"To L. Bartoshesky,

"603 E. Seventh St.,

"Wilmington, Del.

"Thynn Tab Company, Inc. "By Wm. A. Kolbery, Pres.

[Written across the face]

"Accepted August 3rd., 1934.

"Payable at Industrial Trust Co.,

"L. Bartoshesky, Authorized Nov. 5. [On the back of above]

"L. Bartoshesky,

"Pharmacist.

"Thynn Tab Co. Inc.

"By Wm. A. Kilbert, Pres.

"Houston Trading Corp.

"J. Ewing Bigelow, Sec.

"Benjamin Berkowitz, Pres.

"Pay to Federal Reserve Bank or order,

"Prior endorsement Guaranteed, Manufacturers Trust Company, 44 Union Square East, N. Y. City.

"Pay to the order of Any Bank or Trust Co.

"For Collection

"Prior endorsements guaranteed 3-4 Oct 29 1934

"3-4 Federal Reserve Bank of Philadelphia,

"Collection Department."

Suit was brought by the Plaintiff Below in the Court of Common Pleas of New Castle County. After the filing of the statement of claim the suit was removed by the Defendant Below, Plaintiff in Error, to the Superior Court, pursuant to section 5815 of the Revised Code of 1935. The Plaintiff in Error then demurred to the statement of claim, which demurrer was over-ruled and there was an election to take final judgment on the demurrer.

The assignments of error are substantially identical with the causes of demurrer and allege error in over-ruling the demurrer because the first pleading (the statement of claim) was uncertain, indefinite, informal and defective in four particulars:

1. That the statement of claim alleged that the trade acceptance had been payable at "Industrial Trust Company, Wilmington, Delaware" whereas the copy of the trade acceptance attached to the statement of claim showed that it was payable at "Industrial Trust Company", without further notation.

2. That the statement of claim did not sufficiently allege that the trade acceptance had been accepted by the defendant "Louis Bartoshesky", the said trade acceptance having simply been signed, as accepted, by "L. Bartoshesky".

3. That the statement of claim alleged that the trade acceptance "was duly endorsed"

198 A. 699

to the Plaintiff Below, whereas the copy of the trade acceptance showed that it was non-negotiable [by reason of the statement therein that "the obligation of the acceptor thereof arising from the purchase of goods from the drawer]."

4. That the statement of claim declared the trade acceptance as an "inland bill of exchange", whereas the copy of the trade acceptance showed that it was not "both drawn and payable within this State."

RODNEY, Judge, delivering the opinion of the Court:

At the very outset of this discussion we note that every objection of the Defendant Below, Plaintiff in Error, is founded upon the language of the trade acceptance, a copy of which is attached to the statement of claim. In Shaw v. Newton, 5 Boyce 19, 28 Del. 19, 90 A. 465, it was said that in a suit on a note the fact of filing a copy of the note with the declaration does not make the note or copy a part of the declaration, but that its sole purpose under the statute, Revised Code of 1935, § 4649, was to dispense with the necessity of proof of execution unless the defendant, by affidavit, denied the signing. If, then, this was an ordinary suit on the trade acceptance in the Superior Court, it would seem, under the system of pleading in Delaware, that a demurrer could not be based upon the contents of the copy of the note filed pursuant to the statute. This suit, however, had its origin in the Court of Common Pleas and was removed by the Defendant into the Superior Court. The act creating the Court of Common Pleas for New Castle County, chapter 169, section 5807 et seq., Code of 1935, provides that actions therein shall be commenced by filing a statement of claim, and by section 5815 it is provided that "Where the plaintiff's claim is based upon a written contract or other writing, a copy thereof shall be annexed to the statement of claim."

We shall, therefore, treat the note as a part of the statement of claim and consider, in their order, the assignments of error, which correspond...

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