Wulfsohn v. Russo-Asiatic Bank
| Decision Date | 30 April 1926 |
| Docket Number | No. 4343.,4343. |
| Citation | 11 F.2d 715 |
| Parties | WULFSOHN et al. v. RUSSO-ASIATIC BANK. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank E. Hinckley, of San Francisco, Cal., Max Radin, of Berkeley, Cal., and Richard T. Evans, of Tientsin, China (Otto C. Sommerich and Edwin M. Borchard, both of New York, of counsel), for plaintiffs in error.
Chickering & Gregory, of San Francisco, Cal., for defendant in error.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
This is a writ of error to review a judgment of the United States Court for China. The case was heard on an amended petition, answer, and reply. The amended petition alleges, in substance, that the plaintiff is a banking corporation organized under the laws of Russia, with offices in Shanghai, Harbin, and other places in China and elsewhere; that the defendants are copartners having a place of business in New York City, and maintaining an agent in Harbin and elsewhere in China, within the jurisdiction of the United States Court for China; that during the years 1919 and 1920 the plaintiff bought from the defendants, and the defendants sold to the plaintiff, the sum of gold $160,000, for which the plaintiff agreed to deliver to defendants roubles, as more particularly set forth in those certain exchange contracts attached to and made a part of the amended petition; that the plaintiff has performed its part of the contract; that the defendants have failed, neglected, and refused to perform their part; and that there is now due and owing from the defendants to the plaintiff the sum of gold $160,000.
The answer denies on information and belief that the plaintiff is a banking corporation organized under the laws of Russia as alleged, and denies on like information and belief that the persons bringing the action are the Russo-Asiatic Bank, to which the defendants gave the instruments which form the basis of the amended petition herein, or their successors in law; admits that the defendants are copartners, with a place of business and agency as alleged; admits the execution and delivery of the instruments attached to the amended petition; and denies each and every other allegation thereof. By way of special defense the answer avers that the transaction set forth in the amended petition was part of a series of transactions of exchange, and that gold dollars of the full value of all roubles received have been delivered to the plaintiff in New York. The reply denied the affirmative matter in the answer.
Thereafter, and before the trial, the defendants below interposed a motion to dismiss for the following reasons: (1) That books and papers belonging to the defendants and material to their defense have been impounded by the de facto Russian government, and the defendants have been denied access thereto; (2) that a certain material and necessary witness for the defendants is not permitted by the Russian government to leave Russia, or to give evidence at the trial; (3) that the plaintiff, according to its amended petition, is a Russian corporation, and as such is an instrumentality of the Russian government; (4) that the Russian government has not been recognized by the United States of America, and may not sue in an American court; (5) that the right of an alien to sue in our courts is a matter of comity, not of right, and in this case the privilege should be denied; (6) that the contracts set forth in the amended petition are illegal according to Russian law.
The motion to dismiss was denied, and the case went to trial. After the close of the trial the court delivered its opinion in writing and gave judgment for the plaintiff below. Numerous errors have been assigned, and many questions of public and private law have been discussed in the briefs of counsel for plaintiffs in error; but many of the errors thus assigned are not open to review on the record brought here, because no request was made to the court at the close of the trial to find the facts specially, or to find generally, for the plaintiffs in error. In the absence of any such request, and a ruling thereon and an exception thereto, the general finding of the court stands as the verdict of a jury, and an exception thereto presents no question for review.
This rule has been so often affirmed by this court that it is deemed scarcely necessary to refer to the authorities. However, see China Press v. Webb (C. C. A.) 7 F.(2d) 581, where the rule is held applicable to writs of error to the United States Court for China, and the cases there cited. The only questions subject to review, therefore, are rulings made during the progress of the trial, to which exceptions were reserved, and errors apparent from an inspection of the pleadings, process, and judgment.
Among other contentions made is that the statute of limitations is a bar to the action. It is perhaps a sufficient answer to this to say that the statute was not pleaded as a defense to the cause of action set forth in the amended petition. The original petition was filed December 19, 1922. This was general in its terms and made no reference to any written contracts. January 16, 1923, a demurrer to the petition was interposed on the ground that the action was not commenced within the time required by regulation 83 for the United States Consular Courts in China. April 10, 1923, an amended petition was filed, based on the written contracts, and copies of those contracts were attached as exhibits. April 21, 1923, the court filed an opinion overruling the demurrer to the petition. It would thus appear that the record is somewhat inconsistent on its face.
The amended petition, complete in itself, superseded the original petition for all purposes, and no ruling of the court on the original petition, whether made before or after the amendment can be assigned as error. United States v. Gentry, 119 F. 70,...
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