Perlman & Co. v. Sartorius & Co.

• Decision Date: 11 July 1894
• Docket Number: 224
• Citation: 29 A. 852,162 Pa. 320
• Parties: Perlman & Co. v. Sartorius & Co., Appellants
• Court: Pennsylvania Supreme Court

29 A. 852

162 Pa. 320

Perlman & Co. v. Sartorius & Co., Appellants

No. 224

Supreme Court of Pennsylvania

July 11, 1894

Argued February 28, 1894

Appeal, No. 224, Jan. T., 1894, by defendants, from judgment of C.P. Berks Co., No. 65, March T., 1893, on verdict for plaintiffs. Affirmed.

Sheriff's interpleader to determine ownership of property seized as property of one Frame but claimed by plaintiffs. Before ERMENTROUT, P.J.

The facts appear by the opinion of the Supreme Court.

Plaintiffs proposed to show on the trial that the day after the execution there was a conversation between Mr. Frame and Mr Reiling, Mr. Frame stating to Mr. Reiling that he had been going from bad to worse; he ought to have failed two years ago; this for the purpose of showing knowledge of insolvency in regard to Mr. Frame prior to February, 1893. Defendants objected: (1) That any declaration or admission by George C Frame after his failure was incompetent to affect the defendants' rights. (2) That the evidence did not conduce to the purpose for which it was offered. (3) It was generally irrelevant. Admitted; bill for defendant. By Mr. Ruhl: "Q. What was the conversation between Mr. Reiling and Mr. Frame that you heard? A. Mr. Frame tried to explain the reason why he made an assignment, stating that he ought to have failed two years ago, that things were going from bad to worse." [3]

Defendants' points were in part as follows:

"3. If the jury find that this tobacco was shipped by the plaintiffs to George C. Frame under a sale made at Reading in October, 1892, modified as to certain of its terms by subsequent correspondence between the parties, then the plaintiffs cannot recover without showing trick or artifice on the part of Frame in accordance with the established law of Pennsylvania, and as there is no evidence of any trick or artifice in the case, then, under such circumstances, the verdict must be for the defendants. Answer: This point we refuse. There is no question for the jury to determine, whether this contract is under the laws of Pennsylvania or not. The court say to you, and the jury will take the law from the court, that this is a Maryland contract under the law placed here in evidence, concerning which there is no dispute. We say further to you that the place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who, for the purpose of delivery, represents him. For example, a merchant in New York orders goods from a Boston house and they are consigned thence to him either by a carrier of his own selection, or in the usual course of trade, the transaction is an executed Boston contract. So that if a letter is sent from Reading to Baltimore ordering tobacco, as in this case, as appears by the letters in evidence, that would be a contract in Baltimore to be determined and settled by the laws of Maryland." [1]

"4. There is no evidence in this case entitling the plaintiffs to recover." Refused. [2]

Verdict and judgment for plaintiffs. Defendants appealed.

Errors assigned were (1, 2) instructions; (3) ruling; quoting instructions and bill of exceptions and evidence.

Judgment affirmed.

Isaac Hiester, Henry C. G. Reber with him, for appellant. -- The right of reclamation after delivery exists only when an action of deceit would lie: Smith v. Smith, 21 Pa. 370; Backentoss v. Speicher, 31 Pa. 324; Rodman v. Thalheimer, 75 Pa. 232.

Where the contract is either expressly or tacitly to be performed in any other place, the general rule is in conformity to the presumed intention of the parties that the contract as to its validity, nature, obligation and interpretation is to be governed by the law of the place of performance: Story on Conflict of Laws, § 280; 2 Parsons on Contracts, *586, *587; Bank v. IIall, 150 Pa. 472.

This case is ruled by Rodman v. Thalheimer, 75 Pa. 232.

A man to avoid insolvency is not expected to be able to put his hand in his pocket and pay every debt he owes; but he must be able to pay or provide for all his debts as they fall due in the usual course of business: 2 Kent's Commentaries, 490; Levan's Appeal, 112 Pa. 294.

The evidence objected to was improperly received: Pond v. Cruse, C.P., 10 W.N. 223; Martin v. Rutt, 127 Pa. 380.

C. H. Ruhl, Daniel Ermentrout with him, for appellee, cited, as to place of sale: Add. Cont. *197; 2 Pars. Cont., p. 582; Garbracht v. Com., 96 Pa. 452; Tayloe v. Ins. Co., 9 How. 390;

As to substitution of new contract for old one: Rogers v. Rogers, 139 Mass. 440; McNish v. Reynolds, 95 Pa. 486; Carrier & Baum v. Dilworth, 59 Pa. 406; Kelly v. Bliss, 54 Wis. 187; Bishop v. Russe, 69 Ill. 403; Farrar v. Toliver, 88 Ill. 408; Rollins v. Marsh, 128 Mass. 116; Teal v. Bilby, 123 U.S. 572; Allen v. Jaquish, 21 Wend. 628; Swain v. Seamen, 9 Wal. 271; Goss v. Nugent, 5 B. & Ad. 58.

The lex loci contractus prevails: Evans v. Cleary, 125 Pa. 210. It is given in Powell v. Bradlee, 9 G. & J. 220; Benesch v. Weil, 69 Md. 276.

As to admission of evidence: Cox v. Ledward, 23 W.N. 382; Souder v. Schechterly, 91 Pa. 83.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and DEAN, JJ.

OPINION

MR. JUSTICE GREEN:

Referring to the testimony as to the original contract of sale made in October, 1892, it appears that Mr. Perlman was in Reading, Pa., at the vendee's place of business, and while there made the contract. Nothing was said as to any place of delivery of the tobacco, but the terms of the contract were that Frame was to pay "fifty cents a pound in bond," and was to pay the duty in cash. The tobacco was in Baltimore, Maryland, which was the plaintiff's place of business, and was to be shipped, and actually was shipped, from that city. As we understand, the net price of the tobacco was fifty cents per pound without any abatement for freights. This being the case, what was the place of delivery?

In 2 Benj. on Sales, at sec. 1022, it is said: "As to the place where delivery is to be made when nothing is said about it in the bargain, it seems to be taken for granted almost universally, that the goods are to be at the buyer's disposal at the place where they are when sold. . . . Kent says (vol. 2. p. 505, 12th ed.): 'If no place be designated by the contract the general rule is that the articles sold are to be delivered at the place where they are at the time of the sale. The store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made, when the contract is to pay upon demand and is silent as to the place.'" In the footnote (10) to the foregoing text the writer says: "The place of delivery is that place where the goods are at the time of sale," and in support of this proposition a number of authorities are cited and commented upon.

Of course the ultimate destination of the tobacco was Reading in this state, but a delivery to the carrier in Baltimore must be regarded as a delivery under the contract.

In Schumacher v. Eby, 24 Pa. 521, we said: "A delivery of goods to a carrier, in pursuance of a contract of sale or lien, is a delivery to the vendee or creditor so far as to pass the title intended."

In Schmertz & Blakely v. Dwyer, 53 Pa. 335, a merchant in Bahia, Brazil, ordered goods from merchants in Pittsburg with instructions to send them "by first opportunity by vessel, either to this direct or via Pernambuco or then to...