Gurdus v. Philadelphia Nat. Bank

• Decision Date: 13 February 1922
• Docket Number: 80
• Citation: 273 Pa. 110,116 A. 672
• Parties: Gurdus to use of Solnicki v. Philadelphia National Bank, Appellant
• Court: Pennsylvania Supreme Court

116 A. 672

273 Pa. 110

Gurdus to use of Solnicki v. Philadelphia National Bank, Appellant

No. 80

Supreme Court of Pennsylvania

February 13, 1922

Argued January 16, 1922

Appeal, No. 80, Jan. T., 1922, by defendant, from judgment of C.P. Phila. Co., June T., 1920, No. 7056, on verdict for plaintiff, in case of I. M. Gurdus to use of Herman Solnicki v. Philadelphia National Bank. Affirmed.

Assumpsit for value of merchandise. Before ROGERS, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff, for $125,000. Defendant appealed.

Errors assigned, inter alia, were (1) refusal of continuance; (2-10) various rulings and instructions as appear by the opinion of the Supreme Court, quoting record.

The judgment of the court below is affirmed.

George Wharton Pepper, with him W. B. Bodine, Jr., for appellant. -- The payment to the Industrial Bank, if made, did not have the legal effect of a payment to the Philadelphia 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 New York Life Ins. Co. v. Statham, 93 U.S. 24.

As the Industrial Bank could not have obtained the bills of lading without first remitting to the Philadelphia Bank Solnicki's agreement to receive the bills from the Industrial Bank made remittance to the Philadelphia Bank a condition of the resale.

Gurdus, on payment of the draft, could not compel the Philadelphia Bank to account for collateral held by it except to himself or a single assignee: Mandeville v. Welch, 5 Wheat. 277.

The fall of the Kerensky government on November 7, 1917, prior to the alleged payment in Moscow, and the absence of all recognition of the Bolshevik Republic by the United States government and the facts that the latter has never established international relations with any government in Russia since that date, and that at no time since had it been possible to obtain a passport from this government for one to go to Russia, are matters of which the court should take judicial notice: Oetjen v. Leather Co., 246 U.S. 297; U.S. v. Hamburg Am. Co., 239 U.S. 466; Jones v. U.S., 137 U.S. 215.

Morris Wolf, with him Murdoch Kendrick, for appellee. -- A man who acts through a person whom he has authorized to act for him, in a way in which that person was authorized to act, acquires the same rights and is subject to the same liabilities as if he had acted in that way himself.

There is such identity in the payment of the money to the agent that the principal is liable in such cases for money had and received, even though it never came into his hands: Comly v. M'Bride, 4 Whart. 526; DeTurck v. Matz, 180 Pa. 347.

The proposition that the change of the form of the government of Russia operated in and of itself to annul existing contract relations between private citizens of Russia and private citizens of other countries, is one entirely unsupported by authority: Torlade v. Barrozo, 1 Miles 366.

As a matter of fact, even the declaration of war does not, ipso facto, terminate all kinds of agency: Williams v. Paine, 169 U.S. 55.

The question of granting or refusing a continuance is within the discretion of the trial court, whose action therein will be reversed only for abuse of that discretion: Bank v. Guarantee, etc., Co., 238 Pa. 75; Peoples Nat. Bank v. Hazard, 231 Pa. 552; Davidson v. Davidson, 262 Pa. 520.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiff sued for the value of certain glazed kid, which he alleged had belonged to him, but defendant had sold and retained the proceeds; he recovered a verdict for the amount realized at the sale, with interest, and from the judgment entered thereon defendant appeals.

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 R. Evans & Co., sold to the legal plaintiff, I. M. Gurdus, sixty-two cases of glazed kid, 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 was entitled to recover the value of the kid, unless there were other objections to his claim. Indeed, this is not now disputed; but defendant avers there are three reasons, arising out of facts not contradicting those above stated, why the suit cannot be successfully maintained, at least at the present time.

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,...