There had been a confusion in the description on the $8,200 draft covering the car in question, and consequently Quaker City could not advise Jerpe of the amount necessary to clear the advance until the situation was clarified. When Quaker City finally assured itself of the identity of the draft it paid it on June 15, 1940, and advised Jerpe of the amount. Thus Quaker City fulfilled the two conditions of Jerpe's letter wherein Jerpe obligated itself to pay upon (1) advice of the amount necessary to clear the Quaker City advance and (2) the acknowledgment and transfer of the turkeys to Jerpe's account.
Jerpe contends that its June 7, 1940, letter from Omaha, Nebraska, could not have arrived in Philadelphia on June 8, 1940, notwithstanding the fact that its counsel had previously stipulated that fact (as it now asserts, in error). I would unhesitatingly agree with this contention and take judicial notice of the impossibility of a letter reaching Philadelphia in that space of time in ordinary course of mail. However, a communication from the Postmaster, which the parties have agreed to accept as evidence, indicated that a letter sent via air mail from Omaha could have arrived the following day in Philadelphia. We have the positive evidence from Lang, the witness for Quaker City, that he received the letter on June 8, 1940, and had sent off the warehouse receipts in reliance upon the letter. The information as to the manner of sending the letter was peculiarly in the hands of Jerpe, and although an opportunity was afforded it offered no testimony on that point. Thus we have the affirmative testimony of the recipient of the letter uncontradicted, coupled with its physical possibility. I have therefore made Finding 6 accordingly.
But even apart from the date on which Jerpe's letter was received by Quaker City, I am of the opinion -- and have so found -- that Jerpe knew that the car load in question was the subject of an advance by Quaker City when it, Jerpe, received the non-negotiable warehouse receipts. The mere fact that the precise amount (as yet unascertained) was not noted on the receipts does not therefore avail Jerpe. The definition of the term "advances" as appears on the warehouse receipts is not material as long as Jerpe knew that Quaker City contemplated a payment or loan on the carload and a reimbursement by Jerpe. Jerpe cannot now say, "It is not so nominated in the bond". The previous transaction and the letter of June 7, 1940, indicate Jerpe's knowledge of Quaker City's intention. Jerpe was not misled (it has, indeed, offered no testimony that it suffered any loss or has changed its position). It is likewise clear that it was the intention of Jerpe to reimburse Quaker City.
The general principle is well stated in Section 505 of the Restatement of the Law of Contracts: "Except as stated in sections 506, 509-11 [which have no application here], if one party at the time of the execution of a written instrument knows not only that the writing does not accurately express the intention of the other party as to the terms to be embodied therein, but knows what that intention is, the latter can have the writing reformed so that it will express that intention."
From what I have said, it is scarcely necessary to answer the argument that Quaker City is estopped from asserting its lien because (as Jerpe claims) the warehouse receipt was in violation of Section 2 of the Uniform Warehouse Act (Penna. Act of March 11, 1909, P.L. 19, 6 Purd. Stat. § 132) in that it did not specify the amount of advances made. The section of the Act itself provides that:
"A warehouseman shall be liable, to any person injured thereby, for all damage caused by the omission from a negotiable receipt of any of the terms herein required." (Emphasis supplied.)
The receipts in question are not negotiable receipts, nor does it appear that the claimant was injured thereby.
I therefore state the following
Conclusions of Law.
1. Jerpe having promised and agreed to repay the advance made by Quaker City against Car MP-3405, and Quaker City having been led thereby to make said advance and to act on the faith of Jerpe's promise, and the circumstances being such that injustice can be avoided only by the enforcement of Jerpe's promise, Jerpe is estopped from repudiating its obligation.
2. Jerpe is not a bona fide purchaser for value of the said turkeys; Quaker City, having made its advance in good faith, upon the security of the turkeys, has all the rights of such a purchaser to the extent of its advance.
3. Quaker City had a valid lien and claim against the car of turkeys received on June 8, 1940 in Car MP-3405 for the amount of its advance in the sum of $8,200.
4. Jerpe having refused to repay said advance, it has no valid claim against Quaker City either on the bond filed by Quaker City or otherwise.
5. The trustees' objections to the Jerpe claim have been established and the same should be, and are hereby, sustained.
6. The claim of Jerpe should be dismissed.
Accordingly, the exceptions to the special master's report are dismissed and, in accordance with the recommendation of the special master, the following order is made:
Order: And Now, to wit, February 27th, 1943, the objections filed in this proceeding to the claim of the Jerpe Commission Co., Inc., are sustained; the claim of the Jerpe Commission Co., Inc. is dismissed; and the outstanding refunding bond in the sum of $9,000 given by the Debtor in favor of that Company, is declared a nullity.
© 1992-2004 VersusLaw Inc.