Gurdus ex rel. Solnicki v. Philadelphia National Bank

Citations

• 273 Pa. 110
• 23 A.L.R. 1227
• 116 A. 672
• 1922 Pa. LEXIS 529

Syllabus

<p>Practice, C. P. — Trial—Statement of claim — Affidavit of defense.</p> <p>1. The proper method for placing upon the record, for the purposes of a trial, the averments of the statement of claim which are not denied by the affidavit of defense, is to offer them in evidence specifically.</p> <p>2. If this be done, the facts stated therein cannot be contradicted or qualified by the opposite party.</p> <p>Practice, C. P. — Continuance—Discretion of court — Abuse.</p> <p>3. The granting or refusing of an application for a continuance is a matter for the exercise of a sound discretion, and this will not be reviewed on appeal except in cases of clear abuse.</p> <p>4. It was not an abuse of discretion to refuse an application for a continuance for an indefinite time; the proper practice is to ask it for a definite time, with leave to renew the application.</p> <p>5. Nor was it where the continuance was asked on account of the absence of witnesses, and no attempt was made to comply with a rule of court requiring an affidavit in such case stating what the witness would say, if present.</p> <p>Appeals — Application for relief — Grounds for relief.</p> <p>6. If an applicant seeks the wrong character of relief the court will not be reversed for refusing it, even though cognate relief would have been proper and the court could have granted it in deciding the application actually made; the court is not obliged to mould the application but only to decide it.</p> <p>Contract — Sales—Drafts—Warehouse receipts.</p> <p>7. Where a single draft is drawn to cover two or more separate sales of goods, and is forwarded with one or more warehouse receipts or certificates in regard thereto, the purchaser or his assignee may pay either one and require the proper warehouse receipt to be delivered.</p> <p>8. Where a single draft covers two or more separate sales of goods, and the vendor or his assignee resells them, after the draft has been paid, he thereby makes himself liable to each assignee