(116 A.) 9. Banks and banking 162 Seller's as-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. Seller's assignee could not avoid effect of payment by buyer's assignee to bank in Russia, to which seller's assignee had sent draft for collection, on the ground that the judiciary in Russia had been so paralyzed that seller's assignee could not force such correspondent bank to account for the money paid, in the absence of a showing that buyer's assignee had reason to believe the money would be lost to seller's asignee if he paid it to the bank. Appeal from Court of Common Pleas, Philadelphia County; Joseph P. Rogers, Judge. Suit by I. M. Gurdus, to the use of Herman Solnicki, against Philadelphia National Bank. Judgment for plaintiff, and defendant appeals. Affirmed. [1] Under the facts thus conclusively established (Gillespie v. Pennsylvania Co., 272 Pa. 393, 115 Atl. 540), 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 main Argued before MOSCHZISKER, C. J., and George Wharton Pepper and W. B. Bodine, Jr., both of Philadelphia, for appellant, Morris Wolf and Murdoch Kendrick, both of Philadelphia, for appellee. SIMPSON, J. 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. [2, 3] 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 20 witnesses supposed to be living there and acquainted with facts important to the defense. 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 Guaranty & Surety Co., 238 Pa. 75, 85 Atl. 1126; Davidson v. David The son, 262 Pa. 520, 106 Atl. 64. We cannot say At the trial of the case, following the it did. No attempt was made to comply with practice approved by us in Buehler v. Unit- the rule of court, requiring a party seeking ed States Fashion Plate Co., 269 Pa. 428, a continuance to state by affidavit what it 112 Atl. 632, plaintiff offered, and there was expects to prove by the witnesses, in order admitted in evidence, certain of the aver- that his opponent may have an opportunity ments of the statement of claim, which had to admit what they would say, if present, not been denied by the affidavit of defense, and thus avoid the supposed necessity for and these may be summarized as follows: continuing the case. So, also, the application John R. Evans & Co. sold to the legal plain- was objectionable because asking for a contiff, I. M. Gurdus, 62 cases of glazed kid, tinuance for an indefinite time. The proper the former agreeing to deliver it to the lat- course to pursue would have been to ask it ter in Philadelphia, upon payment being for a definite time, with leave to renew the made therefor; for the purpose of obtaining application; but this was not done, and though the purchase price Evans & Co. drew its the court below might well have exercised draft upon Gurdus, at Moscow, Russia, de- its discretion, in view of the situation befendant purchased it and the warehouse re-lieved to exist in Russia, and granted the conceipt for the kid, and forwarded the draft to its correspondent, the Moscow Industrial Bank of Moscow, Russia, accompanied by its (defendant's) nonnegotiable 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 tinuance for a fixed period, it was not obliged to do more than decide the application made, and hence we cannot say it abused its discretion, especially as the letters rogatory had been outstanding nearly five months, and nothing had been heard from them during that time. [4] Subsequently, on July 27, 1921, a communication was received, purporting to come from the "Chief of the Department of Economy and Law" of the Russian Socialist Federated Soviet republic, in which it is stated that letters rogatory are executed in a for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes eign country only because of "international | carrying out its agent's agreement, as well agreements concluded between the two coun- as from doing that which it says was the tries, with the aim of regulating such pro- only thing it was required to do. After this ceedings," and that since there was no agree- occurred, use plaintiff had no other remedy ment between the Soviet republic and this than to recover damages for the value of government, we "regret to state that the re- the kid to which it proved it was entitled. quest of your court cannot be fulfilled." Of Moreover, if defendant's claim was in all course this communication could have had other respects correct, it would not be a deno effect on the application for a continu- fense to this suit, but only to a suit for the ance, since it was not received until after value of the other 64 cases. Stradley v. the refusal thereof, and hence we cannot Bath Portland Cement Co., 228 Pa. 108, 77 take it into account in determining whether Atl. 242, 139 Am. St. Rep. 993. As we have or not the discretion of the court below was shown, however, it will not be available properly exercised. We think, however, it even there. would not have helped appellant; it rather confirms the belief that the evidence desired could not have been there obtained by letters rogatory, until long after a reasonable time for their execution. [5, 6] Defendant says in the next place that the draft, as forwarded to its correspondent in Moscow, included the purchase price, not only of the 62 cases of kid, but also of 64 others, which had been assigned by Gurdus to use plaintiff and by the latter to one Heller, and the accompanying certificate also included both transactions; that use plaintiff was not entitled to more than the sixty-two cases and Heller to the balance, and the right of action cannot thus be split without defendant's consent. These averments of fact are true, but are only a part of the applicable facts; and, moreover, the legal conclusion stated is not accurate. There were two distinct sales of two separate invoices of kid, at different prices and at different times, and they were held by the warehouse in separate parcels, each subject to delivery on the surrender of its individual warehouse receipt. That Evans & Co., for its convenience, drew the draft for the two together, and defendant, for its convenience, sent but one certificate covering the two warehouse receipts, could not defeat Gurdus's right to separately pay the purchase price of each invoice and then obtain the proper warehouse receipt therefor, or to assign his right in that one to use plaintiff. Indeed if there had been but one contract and one warehouse receipt, defendant could not be heard to object to the division, at least so long as it or its agent was paid the whole amount due at one time, and it was only required to deliver the warehouse receipt, if single, into the joint custody of all those interested (Caldwell v. Hartupee, 70 Pa. 74); and even this latter right, if it was such, defendant lost when it delivered the warehouse receipts and itself obtained and sold the kid. It is idle to say that under the arrangement made by the parties with the Moscow Industrial Bank the latter was to obtain the warehouse receipts from defendant and deliver them to Gurdus. Defendant by surrendering them to the warehouse company and receiving and selling the [7] Defendant's final claim is that the court below should have taken judicial notice of the fact that the Kerensky governmentwhich was in power in Russia at the time the leather was sold, and had been recognized by this government-was overthrown on November 7, 1918, by the Soviet republic, which was not recognized by us; the change resulting, at some time thereafter, in so paralyzing the judiciary of Russia as to hinder defendant from forcing its correspondent to account for the money paid, though our government is not shown to have recognized that status as existing. Under such circumstances no court could judicially notice this alleged situation. The evidence shows that up to the time the money was paid, on December 4, 1918, the Soviet republic had not interfered with the operations of the Moscow Industrial Bank. About March 1, 1919, it took over the administration of the banks in Russia, and much later, at a date not fixed by the evidence, they were nationalized. Moreover it does not appear at either of these dates, how much, if any, of the money paid for the kid was still in the running account of defendant with the Moscow Industrial Bank, to the credit of which defendant directed it to be deposited. After this was done, it drew a number of checks upon the account, but in whose favor they were drawn, the amount thereof, and whether or not they were paid, is not shown. The two former matters it could have proved, the latter possibly not; but no evidence was produced touching any of them. [8] Assuming, but not admitting, that the court could take judicial notice of the fall of the Kerensky government and of the control obtained by the Soviet republic, and that by reason thereof the Moscow Industrial Bank would not be able to honor defendant's checks drawn against its account, it must necessarily follow also that defendant was bound to take notice of these facts and act accordingly. A court does not take judicial notice of such matters because it has some superior knowledge in regard thereto, but only because they are so certainly true and so well known that everybody is supposed to take notice thereof. 15 R. C. L. 1058, 1059. (116 A.) (273 Pa. 95) JORDAN et ux. v. EISELE. (Supreme Court of Pennsylvania. Feb. 13, 1922.) It did none 1. Municipal corporations 706 (3)-Leaving horse unhitched in street presumed negligence. in relation to the fall of the one government and the control by the other, as early as November 7, 1917, and it could and should have attempted to recall the agency of the Moscow Industrial Bank or notify it not to accept and plaintiff not to pay the draft. It did none of these things; on the contrary, by drawing checks on the account after that date, it affirmed plaintiff's right to pay the draft and receive it and the certificate, unless indeed defendant so acted in ignorance of the situation in Russia, and if it was ignorant, then the facts were not so certain and well known as to cause either the court or plaintiff to take notice thereof; hence the latter would not be bound unless shown to have otherwise, acquired knowledge on the subject, and of this no proof was attempted. [9] Relying upon its erroneous conclusion that the court below should have taken judicial notice of the alleged facts above set forth, appellant thus states its supposed defense growing thereout: "The payment to the Moscow Industrial Bank, if made, did not have the legal effect of a payment to the Philadelphia National 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." Aside from that which has already been said, this novel and remarkable contention, if otherwise sustainable, would still have to be overruled because it overlooks the difference between a "liability to account" and an opportunity to compel an accounting. It would be a strange conclusion, involving little less than a travesty of justice, if it were held, where an agent authorized to receive payment of an account in fact receives it by virtue of the authority thus given, that subsequent difficulties, which operated to prevent the principal from collecting from its agent the money thus paid, but for which the innocent payor is not responsible and of which he had no knowledge, should result in his bearing the loss, rather than the principal who clothed the agent with authority. This would be in direct violation of the fundamental rule that if one of two innocent parties must suffer, he who clothes the agent with authority to receive must himself bear the loss. Penna. Railroad Company's Appeal, 86 Pa. 80; Wolfgang v. Shirley, 239 Pa. 408, 86 Atl. 1011. To affect plaintiff defendant would have had to prove, not only that Gurdus knew of the fall of the Kerensky government, but also at least that he had reason to believe the money would be lost to defendant if he paid it to the Moscow Industrial Bank; of this, however, there is nothing in the pleadings or the proofs. The judgment of the court below is affirmed. Though the mere fact that a horse runs away does not establish negligence, the leaving of a horse unhitched and unattended in a city street raises a presumption of negligence which places upon the party so doing the burden of justifying the act. 2. Municipal corporations 706 (6)-Whether presumption of negligence from leaving a horse unhitched has been rebutted is jury question. Whether the defendant has overcome the that he left a horse in the street unhitched presumption of negligence arising from proof and unattended is a question for the jury. 3. Municipal corporations 706 (6)-Evidence held to sustain finding of negligence in leaving horse unhitched. Evidence that defendant's driver, when one horse of a team fell, unhitched the other horse, which was young and skittish, and left it unhitched and unattended while he was urging the other horse to get up, and that the former ran away when kicked by the latter in its struggles, held sufficient to take the issue of negligence of the driver to the jury. 4. Municipal corporations 705 (11)-Leaving horse unhitched is proximate cause of injuries inflicted by it while running away. Where a driver negligently left a horse unhitched and unattended, as the result of which it ran away and injured plaintiff, such negligence was the proximate cause of plaintiff's injuries, though the actual occurrence might have seemed improbable. 5. Appeal and error 15-Joint appeal cannot be taken from separate judgments for husband and wife. in favor of husband and wife for injuries to the Where separate judgments were rendered wife, it was error to permit a joint appeal by defendant, but where defendant elected to treat his joint appeal as one from the judgment for the wife alone, the motion to quash the appeal will be refused. 6. Appeal and error 357(1)-Appeal cannot be allowed nunc pro tunc after expiration of statutory time. Since the time for an appeal to the Supreme Court is definitely fixed by statute, that court cannot grant a petition for leave to appeal from a judgment nunc pro tunc after the statutory time expired. Appeal from Court of Common Pleas, Philadelphia County; Howard A. Davis, Judge. Action by J. S. Jordan and his wife Maumee Jordan against Philip C. Eisele. From separate judgments for the plaintiffs, defendant appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Argued before FRAZER, WALLING, [able. See Howarth v. Adams Express Co., SIMPSON, KEPHART, and SCHAFFER, JJ. 269 Pa. 280, 112 Atl. 536. David Phillips, of Philadelphia, for appel lant. Joseph G. Denny, Jr., of Philadelphia, and Harman Yerkes, of Doylestown, for appellees. were recovered by plaintiff and her husband, [5] In the trial court separate judgments from which a joint appeal was taken. This to quash the appeal, but, as appellant elected to treat the appeal as from the wife's judgment, the motion is refused. was error, and formed the basis of a motion [6] The time for an appeal to this court is definitely fixed by statute; hence we cannot tunc. and the judgment is affirmed. WALLING, J. On April 15, 1913, defendant's team, attached to a street sweeping machine and in charge of an employee, was being driven east in Larchmont avenue, Philadelphia, and, in making the turn at Fifty-grant defendant's petition for leave to apadelphia, and, in making the turn at Fifty-peal from the husband's judgment nunc pro Second street, one of the horses fell on the pavement. The driver unhitched the other horse and turned its head away from the pole, where it was left unrestrained, although young, shy, and skittish, while the driver went over by the fallen horse, and by kicks, etc., urged it to arise. The latter in struggling kicked the hind leg of its mate, which, being free, ran three blocks down the BEETEM et al. v. CARLISLE LIGHT, HEAT street, where it injured Mrs. Maumee Jor& POWER CO. dan, the plaintiff. The jury found in her fa- (Supreme Court of Pennsylvania. vor, and this appeal by defendant is from judgment entered thereon. [1-3] Appellant's statement of the question involved is: "Is there any evidence to support the verdict for plaintiffs?" This must be answered in the affirmative; for, while there was some slight discrepancy in the evidence, it justified a finding of the facts as above stated. The mere fact that a horse runs away does not of itself establish negligence (Luks v. American Ice Co., 267 Pa. 337, 109 Atl. 680, Coller v. Knox, 222 Pa. 362, 71 Atl. 539, 23 L. R. A. [N. S.] 171), yet, leaving a horse unhitched and unattended in a city street raises a presumption of negligence, placing upon the party so doing the burden of justifying the act, and whether that burden has been met is a question for the jury. Stevenson v. United Express Co., 221 Pa. 59, 70 Atl. 275, 128 Am. St. Rep. 725; Henry V. Klopfer, 147 Pa. 178, 23 Atl. 337, 338; Weikel v. Pullman Taxicab Co., 59 Pa. Super. Ct. 595, 597. In the present case, the horse was young and skittish; whether the driver exercised reasonable care in leaving it loose in the street, when it might have been tied or temporarily placed in charge of a fellow workman or bystander, was for the jury. Moreover, due caution might have suggested the probability that a skittish horse would take fright from the struggles of the mate in regaining its feet. 1922.) (273 Pa. 82) Feb. 13, Public service commissions 1912, New vol. 12A Key-No. Series-Court may not pass on claim for over-payment for steam furnished by public service company, the Commission having original jurisdiction. diction of a suit for money paid pursuant to a The court of common pleas is without juristariff filed with the Public Service Commission in excess of the contract price for steam furnished by a public service company; plaintiff's remedy being with the Public Service Commission. Appeal from Court of Common Pleas, Cumberland County; G. B. Sadler, Judge. Suit by Edward C. Beetem and another, trading and doing business as E. C. Beetem & Son, against the Carlisle Light, Heat & Power Company. From a decree dismissing their bill, plaintiffs appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ. Douglass D. Storey, of Harrisburg, and Joseph P. McKeehan, of Carlisle, for appellants. Caleb S. Brinton and E. M. Biddle, Jr., both of Carlisle, for appellee. SCHAFFER, J. Plaintiffs appeal from the [4] The jury found the horse ran away dismissal of their bill in equity, filed against and injured plaintiff because of the driver's defendant to restrain shutting off the sup negligence; if so, the negligence was the ply of live steam furnished by it to them in proximate cause of the injury, as there was pursuance of a written contract, and for a no intervening agency. The natural result decree of reparation for money alleged to of a horse running away in a city street is have been illegally collected. injury to persons or property, and he whose The record discloses defendant was incornegligence caused it is liable for the conse-porated for the purpose of supplying "light, quences, although in advance the result ac- heat, and power by means of electricity to tually occurring might have seemed improb- the public in the borough of Carlisle." (116 A.) pursuance of a written contract, for an an- On Appellants were the only purchasers of live steam from defendant, with the exception of the Carlisle Gas & Water Company, a corporation allied with defendant, which owns all its (defendant's) capital stock and is operated in conjunction with it. Defendant held itself out as willing to furnish live steam to the public, but had no customers except complainants. Plaintiffs claim defendant is not a public service company so far as furnishing live steam is concerned, and therefore, as affecting the price fixed in the contract with them, the filing of the tariff was a nullity, and the Public Service Commission without jurisdiction. The defendant is, however, a public service company, and over its rates (and that is the only question here) the Public Service Commission has jurisdiction. Appellants seem to have at least tacitly recognized this, as they made application to that body to strike off the tariff, which application has never been acted upon; plaintiffs' remedy, then, in the first instance lies with the Public Service Commission. Leiper v. Baltimore & Philadelphia R. R. Co., 262 Pa. 328, 333, 105 Atl. 551; Klein-Logan Co. v. Duquesne Light Co., 261 Pa. 526, 104 Atl. 763; St. Clair Borough v. Tamaqua & Pottsville Electric Ry. Co., 259 Pa. 462, 103 Atl. 287, 5 A. L. R. 20. Without expressing an opinion on the merits of appellants' complaint, we.are constrained by our prior decisions to hold the determination of the court below to be correct, that it was without jurisdiction of the proceedings, not thereby intending to deny plaintiffs a remedy for the wrong they set up, as redress may be at their hand before the Public Service Commission if their claim is meritorious. The decree of the court below is affirmed, at appellants' cost. (273 Pa. 90) BARBER MILLING CO. v. LEICHTHAM- (Supreme Court of Pennsylvania. Feb. 20, Sales 177-Seller could ship goods bought after notice of cancellation and recover damages. Where flour was sold, and before shipment thereof buyer notified seller of cancellation and repudiated the contract, seller could properly refuse to acquiesce in the abrogation of the agreement, and could ship the flour to the place of delivery, and, on refusal of buyer to accept at place of delivery, could recover damages resulting therefrom, though at the time of the notice of cancellation there was an available market for the flour at point of shipment, and it could have been then sold without loss. Appeal from Court of Common Pleas, Montgomery County; John Faber Miller, Judge. Action by the Barber Milling Company against the Leichthammer Baking Company. Judgment for defendant, and plaintiff appeals. Reversed, with directions to enter judgment for plaintiff. Argued before FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ. Aaron S. Swartz, Jr., John M. Dettra, Samuel H. High and Montgomery Evans, all of Norristown, for appellant. Theodore Lane Bean and C. Henry Stinson, both of Norristown, for appellee. SCHAFFER, J. Plaintiff, a milling company in Minneapolis, sold to defendant, a baker in Norristown, 400 barrels of rye flour for future delivery. Under the terms of sale, the freight to destination was to be paid by the seller. Before the delivery date, the purchaser notified the seller of cancellation of the sale and repudiated the contract. Plaintiff refused to acquiesce in the abrogation of the agreement, shipped the flour to defendant at Norristown, the place of delivery, and, upon vendee's refusal to accept, endeavored to sell the flour in Norristown, Philadelphia, and other nearby cities, where, it turned out, there was no market for the commodity, and thereafter disposed of it in New York, which was an available market, at a loss of $1,660.35 measured by the difference between the contract price and the sale price, plus the expenses of the resale. Suit was brought to recover the amount of the loss caused by defendant's breach of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |