#### Electro-Tint Engraving Company, Appellant, *v.*American Handkerchief Company, Respondent.

First Department,

February 19, 1909.

Evidence — judicial notice — foreign laws — sale — when buyer not entitled to protection of foreign law — practice — judgment on pleadings after issue joined — severance of action.

The court cannot take judicial notice of foreign laws. Where a party seeks to recover or defend under the law of a sister State that law must be pleaded and proved like any other fact.

Thus, where a contract for the manufacture and delivery of printed pictures provides that they shall be of good quality and equal to samples furnished, so that under the law of this State the buyer must either reject the pictures or pay the agreed price of those used, the defendant cannot claim the benefit of a rule of the State where the contract was executed and the goods delivered permitting a buyer either to reject the goods or to accept and use them, and" be liable only for the actual value, without alleging and proving the foreign law.

Where the buyer admits that it used the greater portion of the pictures delivered and alleges no valid defense, the plaintiff, moving under section 547 of the Code of Civil Procedure, is entitled to judgment for the contract price of the portion used, and the action should be severed, pursuant to section 511 of 'the Code of Civil Procedure, and the plaintiff be permitted to continue the action as if it had originally been brought for the remainder of the claim if he so elects.

■ Appeal by the plaintiff, the Electro-Tint Engraving Company, from an order of the Supreme Court, made at the Hew York Special *562Term and entered in the office of the clerk of the county of New York on the 26th day of December, 1908.

*E. C. Crowley*of counsel *[Goodale*& Hanson,attorneys], for the appellant.,

*Thomas Conyngton,*for the respondent.

Clarke, J.:

Plaintiff moved at Special Term, Part 1, for an order granting judgment for the sum of $4,078.89, with interest from December 1. 1907, and also for the sum of $2,851.18, with interest from January 1, 1908, admitted by the answer to be due to the plaintiff, and directing' that the action be. severed, and that it be continued as to the remainder of the claim set up in the complaint, with like effect as to all subsequent proceedings as if it had been originally brought for the remainder of the claim. The motion was denied and from the order entered thereon this appeal is taken.

The complaint alleges that on or about the 25th day of July, 1907, the plaintiff and defendant, at Philadelphia, entered into a contract whereby the plaintiff agreed to furnish the defendant 3,000,000 tliree-colored process pictures, and the defendant agreed to pay the plaintiff for the same according *to*the conditions set forth in exhibits annexed to the complaint and made a part thereof.

In the first of these letters defendant wrote: *“*Kindly accept our order for three million three-colored process pictures under the following conditions: * * * That the three million pictures will be divided equally into nine subjects. * * * Proofs are ’to be furnished us for our approval before the actual work of printing is begun. That the delivery shall be as follows: Two million to be delivered during September, October, November and December, 1907, at a rate of 500,000 each month and at a rate of not less than 100,000 per week. That the remaining one million pictures are to be ordered out by January the 31st, 1908. That if we see fit the delivery of the pictures can be changed and the entire three million ordered out by December 31st, 1907, instead of January - 31st, 1908 * * *. That the price of the first 500,000 pictures is to be $6.10 per thousand, and the price for the remaining two million five hundred thousand is to be $5.50, both, prices *563f. o. b. Philadelphia. That the work is to be first class in every particular and to be up to proofs approved by us;” to which the plaintiff answered, “ It gives us great pleasure to acknowledge your valued favor of the 24th inst., containing order for three million pictures. The conditions named therein are entirely satisfactory to us, except that you mention Trichromatic paper. We do not intend to use Trichromatic paper, except on the first edition of 500,000. We have arranged for a paper that will be, if anything, superior to the Trichromatic. * * * We know that this will be entirely ■ satisfactory to you as you are only interested in the finished product, which we will uniformly,maintain. *' * * Thanking you for the order,” etc. Plaintiff wrote another letter the same day: “We haven’t mentioned the question of terms on the order for the three million pictures, but wish to say that our idea of payment would be, that you send us a check each month on receipt of each month’s lot of pictures, the entire order to be ¡laid on or before January 31st, 1908;” to which the defendant answered: “We have your letter * * * accepting our order for three million pictures. We note your exception in reference to Trichromatic paper, and would state that as long as the paper used is equally as good as Trichromatic it will be satisfactory. * * * In reference to the terms stated in your letter, we understand them as follows : That whereas there will be three or four shipments each month of pictures that the total number of pictures received during that month are to be paid for before the end of each month, that is, that pictures received each month are to be paid for before the expiration of said month. The terms as above stated are perfectly satisfactory to us.”

The complaint proceeds to state that the plaintiff in all respects duly performed all the conditions of said contract on plaintiff’s part until the 9th day of January, 1908, when the defendant refused to pay the plaintiff installments then due for deliveries of pictures received by defendant in November and December, and further abandoned said contracts, and refused to perform the same, and prevented the plaintiff from continuing to perform the same thereafter. *“Fifth.*That on said 9th day of January, 1908, the defendant had received from the plaintiff in November, 1907, 874,930.pictures, which the plaintiff had delivered under said com *564tract, and the sum of $4,812.10 became due therefor from the defendant to the plaintiff on the 1st day of December, 1907, which sum has not been paid except $733.21 thereof. That on said 9th day of January, 1908, the defendant had received from the plaintiff in December, 1907, 518,400 pictures, which the plaintiff had delivered under said contract, and the sum of $2,851.18 became due therefor from the defendant to the plaintiff on the 1st day of January, 1908, which sum has not been paid nor any part thereof.” It is for these two sums so alleged to be due that the plaintiff asked judgment on this motion.

The complaint further alleged that it .had expended in preparing to furnish 728,000 pictures in January, $2,779, and that by the refusal of the defendant to complete on its part, and its abandonment, plaintiff has lost the profit on said number of pictures, amounting to $1,225. Those matters are not before the court.

The answer admits the allegations contained in the 1st, 2d and 3d paragraphs of the complaint, which are the allegations of the corporate capacity of the two parties and of the making of the eon tract and the terms thereof, and so much ■ of paragraph numbered “ Fifth” as contained in the words “ that on said 9th day of January, 1908, the defendant had received from the plaintiff in Hovember, ■ 1907, 874,930 pictures,” and “that on said 9th day of January, 1908, the defendant had received from the plaintiff in December, 1907, 518,400 pictures,” and the allegations of paragraph numbered “ Eighth” contained in the words, “ But the defendant has refused, and still ref uses,-to pay the same.” It denied all the allegations contained in the 4tli paragraph of the complaint, which were that the plaintiff had in all respects duly performed all the conditions of the contract until the ninth day of January, when the defendant refused to pay, and abandoned said contract, and refused to permit plaintiff to perform, and prevented plaintiff from performing; it denied all the allegations in the 5th paragraph other than its admission of the receipt of the pictures, and it denied each and every allegation in said complaint contained, which was not therein specifically admitted.. For a further separate and distinct defense it alleges that it has always been ready and willing to carry out the contract, but that plaintiff on its part has failed to carry out its contract and to deliver pictures of the kind, quality and condition specified in said *565contract, although frequently requested by the defendant so to do; that it notified the plaintiff of its readiness to abide by and go on with said contract, as is evidenced by the letter of January 1, 1908, a copy of which was attached. That letter is as - follows: “We have fully decided that we cannot use the pictures we have on hand shipped by yon during the month of December, and consequently hold same subject to your order. On the pictures shipped by you during November, the greater part of which we used, we will expect a satisfactory settlement. The November pictures we Used, because we were practically compelled to do so on account of other outlays and expenditures of goods we had incurred to be used, in connection with the pictures, and which, if we had not used the pictures, would have been an entire loss because of their special nature. We complained of these November pictures at least one dozen times to your representative, and were assured after each shipment that the next shipment would be better, and your representative told us to go ahead and use them and that he would see us through in the matter. Practically all of the pictures shipped during November were inferior; a large number were very bad, and we lost a large amount of money through the inability of our agents to dispose of them. The pictures that you shipped during December, while some are better than others, still we bought these pictures in sets of nine and we cannot use them except in sets. When "we placed the order for these pictures, we explained at great length the importance of maintaining the high quality of the pictures throughout, and we were assured by you- that the pictures would, if anything, get better as you went along, you explaining that after you got them going on the presses the quality would improve. * * * We will send you a check for the November account when satisfactory settlement has been made on them.” And the answer proceeds : *“*And at various other times,, personally to the agent of the said plaintiff, in the City of New York, but said plaintiff delivered none of the 728,000 pictures that were to have been furnished this defendant in January, and has never delivered the same or any part thereof. *Ninth.*Defendant admits that it has received and used the pictures furnished by the plaintiff under the agreement during the month of November, but defendant alleges that on the receipt of said pictures •it promptly notified the plaintiff and its agent that said pictures so *566furnished were not in accordance with the terms of the agreement; thereupon plaintiff, through its agent, instructed the defendant to use said pictures, and thereupon agreed with the defendant to make good any loss that defendant should sustain by reason of the fact that said pictures were not in accordance with said contract, which loss the plaintiff has refused and failed to make good to this defendant up to the present time. *Tenth.*Defendant admits that it has received the pictures furnished by plaintiff in December, but defendant alleges that immediately upon receipt and examination thereof it promptly notified the plaintiff and its agent that said pictures were not in accordance with the terms of the agreement, and were held by defendant subject to the plaintiff’s order. Plaintiff thereupon offered, if defendant would pay in full for the November shipment of pictures, to take back all of said December pictures and cancel the agreement. Defendant declined this offer and later, upon receiving many inquiries for pictures, it used a portion of the December pictures, sending same to defendant’s agents, and the remainder, amounting to approximately one-lialf of the defendant’s shipment, are still held by defendant subject to plaintiff’s order.” Wherefore, it asked for a dismissal of the complaint.

It will be noted that no counterclaim is set up; that no amount of damage by way of offset is alleged, and that the matters set forth are'not expressly stated to be a partial defense as required by section 508 of the Code of Civil Procedure. . Further, that the receipt and use of the entire November shipment is admitted, and, that the receipt of the entire December shipment, and the use of approximately one-half thereof is admitted. It is not to be questioned, and in fact the respondent does not question, but states in its brief, “if this were a contract made in the State of New York, the defendant, as set forth in the carefully prepared opinion in *Staiger v. Soht,*116 App. Div. 874, affirmed, 191 N. Y. 527, and other New York decisions cited'by plaintiff, * * * would have been compelled, either to-reject the pictures absolutely, or pay the agreed price for them, as in such cases the New York decisions do not recognize any warranty that would survive acceptance and use,” In the *Staiger*case, Mr. Justice Miller said : “ I deduce from the foregoing that the' following propositions are authoritatively settled in this State, viz. : That mere words of description in an executory contract of sale do-*567not amount to a warranty, and that for a variance between the article delivered and the article described, the remedy is for breach of the contract of sale and does not survive acceptance of the goods where the defects áre patent; likewise that warranties which the law implies as exceptions to the rule *caveat ernptor,*do not survive acceptance where the defects are patent; but that in the case of express warranties, whether the sale be executed or executory, retention of the goods after opportunity for inspection or even after knowledge of the defects does not bar an action for breach of warranty.”

But the defendant claims that it appearing upon the papers that this was a Pennsylvania contract, because the contract is admitted to have been made at Philadelphia and the goods were to be delivered f. o. b. at Philadelphia, so that both the place of the making of .the contract and of the execution thereof was in said State, that the law of Pennsylvania is to be applied; and it claims that under the law of that State the defendant could, at its option, either reject the goods on delivei-y or accept and use them, and in case of acceptance and use would only be liable for their actual value, not for the contract price. But the law of Pennsylvania is not set up or alluded to in the answer. It has been generally understood that where a party either seeks to recover or defend under a foreign law, such law must be pleaded and proved like any other fact, since the court cannot take judicial notice of the laws of a foreign State.

In *Hanley*v. *Donoghue*(116 U. S. 1), Mr. Justice Gray said: “ Ho court is to be charged with the knowledge of foreign laws; but they are well understood to be facts which must, like other facts, be proved before they can be received in a court of justice. *Talbot*v. Seeman, 1 Cranch, 1,38; Ch*urch*v. Hubbart, 2 Cranch, 187, 236; *Strother*v. Lucas, 6 Pet. 763, 768; *Dainese*v. Hale, 91 U. S. 13, 20. It is equally well settled that the several States of the Union are to be considered as in this respect foreign to each other, and that the courts of one State am not presumed to know and, therefore, not bound to take judicial notice of the laws of another State.”

As early as *Monroe*v. *Douglass*(5 N. Y. 447) the Court of Appeals said: “ It is a well-settled rule, founded on reason and authority, that the *lex fori,*or, in other words, the laws of the country to whose courts a party appeals for redress, furnish in all *568cases *prim,a facie*the rule of decision; and if either party wishes the benefit of a different rule or law as, for instance, the *lex domicilii, lex loci*contractus, or *lex loci rei slice,*he must aver and prove it. The courts of a country are presumed to be acquainted only with their own laws; those of other countries are to be averred and proved, like other facts of which courts do not take -judicial notice;; and the mode of proving them,- whether they be written or unwritten, has been long established.”

Of the rule so laid down, this court in *Latham*v. *de Loiselle*(3 App. Div. 525) said: “Two propositions are included in this rule proclaimed in the case cited, viz., that when the suitor is properly in court upon his contract, a remedy will be afforded according to the law of the State of Hew York, and the contract stipulations enforced unless a different law governing that contract is made to appear, and that to make it appear it must be set up by the party claiming advantage under it.”

■In *Fidelity & Casualty Co.*v. *Wells*(49 App. Div. 171) this court said: *“*If,, as is claimed by the defendant, the law of Pennsylvania differs in that regard from ours, no presumption to that effect exists, but that law must be alleged as a fact, and until it is so alleged and proven, we must assume that this contract wherever made is to be construed under the rules .of the common law as applied in' the State" of Hew York. *(Monroe*v. *Douglass,*5 H. Y.-447.)”

In *Stuart*v. *New York Herald Co.*(73 App. Div. 459) this court, in reversing a judgment in favor of the plaintiff in an action for libel, said: “ There was error committed by the court in allowing, over the objection of the defendant, proof of a Hew Jersey .statute making adultery a crime. That statute was not pleaded. Adultery is not a crime at common law, nor in the State of Hew York. Being a crime in the State of Hew Jersey, that should have. been pleaded.”

In *Union National Bank*v. *Chapman*(169 N. Y. 538) the rules were formulated as to the law applicable to the interpretation and the enforcement of contracts, and the defendant was held not liable because by the law of the State of Alabama, where she made her contract, she had no capacity to make the contract in question. In that case, as will be seen on the appeal upon the first trial, reported in 7 Appellate Division, 452, the defendant set up three affirmative *569defenses, pleading the foreign law. It' is apparent, therefore, that in the case at bar, even if the rule of law asserted obtains in Pennsylvania, it is not available in defense as it is not pleaded.

Section 511 of the Code of Civil Procedure provides that: “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed ; that a judgment be entered for the plaintiff for the part so admitted, and if the plaintiff so elects, that the action be continued with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the claim.” Section 547 of the same Code (added by Laws of 1908, chap. 166) provides: “ If either party is entitled to judgment upon the pleadings the court may, upon motion, at any time after issue joined, give judgment accordingly.”

As it appears that the contract is admitted, and that 874,930 pictures had been delivered to and used by the defendant in the month of [November, 1907, and that $4,812.10 became due therefor on the 1st'of December, 1907, of which $733.21 had been paid, leaving a balance of $4,078.89 due ; and that 518,400 pictures had been delivered in December, 1907, approximately one-half of which had been used, and for which $2,851.18 became due on the 1st of January, 1908, no part of which had been paid, and as no defense has been set up in the answer, the plaintiff was entitled to an order of severance and for judgment as prayed.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten .dollars costs to the appellant.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.