Bartoshesky v. Houston Trading Corp.
| Decision Date | 19 April 1938 |
| Court | United States State Supreme Court of Delaware |
| Parties | LOUIS BARTOSHESKY, Defendant Below, Plaintiff in Error, v. HOUSTON TRADING CORPORATION, a corporation existing under the laws of the State of New York, Plaintiff Below, 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:
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" 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."
The judgment is affirmed.
Marguerite Dugan Bodziak for Defendant Below, Plaintiff in Error.
Edmund S. Hellings and Ivan Culbertson for Plaintiff Below, Defendant in Error.
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 (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 to the grounds of demurrer.
1. The Defendant Below, by demurrer, objects that the trade acceptance is alleged by the statement of claim to have been payable at the Industrial Trust Co., Wilmington, Delaware, whereas by the copy of the trade acceptance it appears that it was payable at the Industrial Trust Co. without the words "Wilmington, Delaware."
In support of his contention the Plaintiff in Error has argued that there is a variance between the trade acceptance and the statement of claim, and has cited State to Use of Reading's Adm'r v. Reading's Terre-Tenants, 1 Del. 23, 1 Harr. 23, at page 25, and Randel v. Wright, 1 Del. 34, 1 Harr. 34, at page 41. We think that neither the principle of variance nor either of the cited cases has any application to the present matter. Variances, as applied to civil proceedings are of two kinds (1) those which consist of discrepancies between the writ or process and the declaration or complaint, and (2) those which consist of discrepancies between the averments of the pleadings and the proof adduced in support of such pleadings. The cited cases have application to a variance between the averments of a declaration and a subsequent offer of evidence, but have no application to the present matter.
Without passing upon the form or grounds of the present demurrer, as properly raising the questions sought to be presented, but being desirous of complying with the desire that those questions be answered, we address ourselves to the assignments of error.
Waiving, for the moment, the third assignment of error (which suggests that the trade acceptance is not negotiable), and assuming its negotiability, we find the trade acceptance dated at New York and payable at "Industrial Trust Co.," without further statement of the location of said company. It is not necessary for us now to discuss those cases in which the place of the dating of a note has a material bearing upon the place of presentment, for in all such cases the place of dating was only material because of the presumption, in the absence of other showing by note, that the place of dating was the residence of the person by whom the obligation was to be paid. The present trade acceptance, we find, was addressed to "L. Bartoshesky, 603 E. 7th St., Wilmington, Delaware." The place of the date then is not material to the place of presentment, but we look to Section 73 of the Uniform Negotiable Instrument Act. This section, Section 3197, Revised Code of 1935, provides inter alia:
Presentment then was to be made in Wilmington, Delaware, and would properly have been made at 603 E. Seventh Street had not the acceptor stipulated that presentment should be made at "Industrial Trust Co." It will be presumed that presentment should have been made at the specified place in that city in which the acceptor lived, and the statement of claim properly alleged presentment and dishonor at Industrial Trust Co., Wilmington, Delaware. This was the direct holding in Baily v. Birkhofer, 123 Iowa 59, 98 N.W. 594.
Having concluded that the presentment made...
To continue reading
Request your trial
-
First Bank of Marianna v. Havana Canning Co.
... ... Tex.Civ.App., 38 S.W.2d 1109; Bartoshesky v. Houston ... Trading Corporation, 39 Del. 310, 198 A. 697. A note ... Ward, 98 Fla. 304, ... 123 So. 785; Fowler v. Industrial Acceptance Corp., ... 101 Fla. 259, 134 So. 60. The fact that a note retains title ... ...
-
Continental National Bank v. Stirling
... ... the terms of any extraneous contract. (Bartoshesky v ... Houston Trading Corp., 39 Del. 310, 198 A. 697, 700, 9 ... W. W ... ...
-
Braun v. Fleming-Hall Tobacco Co., FLEMING-HALL
...it proper to dismiss the appeal by reason of what it, and it only, contains. 41 Am.Jur., p. 323-324; Bartoshesky v. Houston Trading Corp., 9 W.W.Harr. 310, 319, 39 Del. 310, 319, 198 A. 697. We elect to read upon the praecipe only that matter which was properly put upon it. So far as that m......
-
Gilliland & Echols Farm Supply & Hatchery v. Credit Equipment Corp.
...sale. Legal Discount Corporation v. Martin Hardware Co., 199 Wash. 476, 91 P.2d 1010, 129 A.L.R. 420; Bartoshesky v. Houston Trading Corporation, 9 W.W.Harr. 310, 39 Del. 310, 198 A. 697. When properly drawn, it is negotiable paper and its use results in advantages to both the purchaser and......