Appeal, No. 91, March T., 1951, from order of Court of Common Pleas of Allegheny County, Oct. T., 1950, No. 132, in case of Falk & Company v. South Texas Cotton Oil Company and The Farmers Deposit National Bank of Pittsburgh. Order reversed.
John G. Buchanan, with him Milton W. Lamproplos and Smith, Buchanan & Ingersoll, for appellant.
John A. Metz, Jr., with him Charles H. Sachs, Sachs & Caplan and Metz & Metz, for appellee.
Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
South Texas Cotton Oil Company, one of the defendants, took this appeal (pursuant to the Act of March 5, 1925 P.L. 23, § 1, 12 P.S. § 672) from the order of the court below discharging its rule to quash a writ of foreign attachment. The ground or basis of the court's decision was that the issue of title (to the proceeds of several drafts) could not be decided preliminarily on a rule to quash. Because the nature of this case is complicated and the facts are so very important we shall state them in great detail.
This is a proceeding of foreign attachment in assumpsit instituted on July 6, 1950, by Falk & Compan a Pennsylvania corporation against South Texas Cotton Oil Company, a foreign corporation, in which The Farmers Deposit National Bank of Pittsburgh was summoned as garnishee. The sheriff on July 6, 1950, served the writ on the garnishee and attached the
was clear, positive and convincing and no one has challenged his credibility. Plaintiff offered no testimony to support the writ or the averments in its answer.
The defendant South Texas Cotton Oil Company entered into a written agreement with plaintiff Falk & Company for the sale of flax seed. Defendant on June 27, June 29 and June 30, 1950, drew drafts upon the plaintiff payable in Philadelphia at sight to the order of the First National Bank in Houston, Texas, in amounts totaling $42,346.49. Each of these drafts was deposited by defendant in its account in the Houston bank on the day of its execution.
The Houston bank accepted the drafts as deposits of cash items and gave the defendant final, unconditional and unqualified cash credit for the sum of the drafts in its account with the bank. The defendant was entitled immediately to draw (from its account) the entire amount of this final, unconditional and unqualified cash credit. The practice of accepting drafts drawn by the defendant and giving final, unconditional and unqualified credit therefor to the defendant had been in effect for more than 25 years and was in effect on June 27 to June 30, 1950, inclusive. The Houston bank sent the drafts to the Philadelphia National Bank at Philadelphia, as items to be collected for the account of the Houston bank and not for the account of the defendant. When the drafts were presented in Philadelphia for payment, two of them were marked "paid", but the mark was cancelled, and the Philadelphia bank sent all of them to The Farmers Deposit National Bank in Pittsburgh. The plaintiff paid the drafts at that bank and immediately after payment attached the money as the property of the defendant.
Plaintiff Falk & Company claims that the defendant South Texas Cotton Oil Company breached its aforesaid contract to ...