Jan A. BATA, Defendant Below, Appellant,
Thomas J. BATA, Thomas J. Bata and David Graham, as Executors of the Estate of Mary T. Bata, and Western Investment and Trading Company, Limited, a Bermuda corporation, Plaintiffs Below, Appellees.
Petition for reargument and to remand the case to the Court of Chancery to reopen the case to receive newly discovered evidence.
George T. Coulson (of Morris, Nichols, Arsht & Tunnell), Wilmington, Harold E. Stassen (of Stassen, Kephart, Sarkis & Scullin), [39 Del.Ch. 549] Philadelphia, Pa., and Amos J. Peaslee, Jr. (of Peaslee, Bringham, Albrecht & McMahon), New York City, for appellant.
Robert H. Richards, Jr. (of Richards, Layton & Finger), Wilmington, and Inzer B. Wyatt, John W. Dickey and Edward C. Stebbins, Jr. (of Sullivan & Cromwell), New York City, for appellees.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
The defendant-appellant, Jan Bata, has filed a petition for reargument on seven grounds. The seventh ground embodies a motion to remand the case to the court below in orde that the defendant may move the Chancellor to reopen the case and receive newly discovered evidence. Since the motion to remand presents a questin not heretofore raised in this proceeding, we consider it first.
Petition to Remand.
The petition advances a new theory of the case, radically different from the issues made by the parties, tried below, and reviewed here. Those issues were as follows:
1. Whether the sale memorandum of May 10, 1931, and the will of May 19, 1931, considered either separately or together, creates a sales legacy in favor of Jan B ata.
2. Whether the Czech doctrine of constitutive recognition is effective to vest title to the Leader shares in Jan.
3. Whether the Czech doctrine of tacit waiver is effective to vest such title in Jan.
Both in the court below and in this Court these issues have been resolved against Jan
on the present record. See Bata v. Hill, Del.Ch., 139 A.2d 159; Bata v. Bata, Del., 163 A.2d 493.
In dealing with these questions it was agreed by all parties that the property in dispute, under Czech law, 'passed to plaintiffs [Tom and Marie] as the intestate heirs subject to debts and legacies'. Appellant's Brief, p. 8.
[39 Del.Ch. 550] The new theory of the case on alleged newly discovered evidence is that the May 10th document was a valid offer of a contract effectively accepted after Thomas' death, and that title to the property in dispute--the Leader shares--passed directly to Jan and never vested in the heirs.
We quote from the petition:
'The newly discovered evidence is as follows:
'It was the law in Czechoslovakia in 1931, 1932, 1933 and until 1938, that a unilateral declaration of sale addressed to an intended purchaser holographic and signed by the declarer and placed in a position where it would be received by the intended purchaser after the death of the seller was a valid offer.
'It was further the law in Czechoslovakia in 1931, 1932, 1933 and until 1938 that an offer did not terminate upon the death of the offeror unless the offeror had expressed a contrary intention, or such intent was to be inferred from the circumstances. Such an offer could be accepted validly within a reasonable time after death.
'It was further the law in Czechoslovakia in 1931, 1932, 1933 and until 1938 that when such an offer was accepted after death, the probate court had the jurisdiction and duty to supervise the fulfillment of the contract and to supervise and confirm the provision of the substitute estate or payments for distribution through the deed of delivery. The title to the property sold passed directly to the purchaser and did not vest in the other heirs.
'It was the law in Czechoslovakia in 1931, 1932, 1933 and until 1938 that the May 10th and May 19th documents in the instant case, upon the acceptance of the May 10th document by Jan A. Bata, did constitute a valid contract consummated after the death of Thomas Bata.'
The petition is supported by affidavits of six experts in Czech law. Taken at their face value, these affidavits confirm the existence, in Czechoslovakia, or at least in Bohemia and Moravia, of the rules of law set forth in the petition.
[39 Del.Ch. 551] These affidavits also set forth the following:
These rules constituted a unique feature of Moravian and Bohemian law and a departure or variant from the rules of the Civil Law prevailing in Germany and other areas of Austria-Hungary. They had their origin in a Bohemian and Moravian tradition that peasant farms should descend to a single owner, in order that the farm might not be split up into uneconomic units. This custom, deeply rooted, developed into the rules of law above quoted. A common and accepted method of insuring the transfer from an owner to his successor was the use of such a sales contract as the May 10th document, i. e., an owner's declaration of sale delivered to and accepted by the offeree after the death of the offeror. This was a special method of giving effect to an owner's wishes, standing between an inter vivos contract and a testamentary sales legacy.
This practice was not limited to peasant farms. It was frequently applied in commercial and industrial circles where the owner wished to preserve economic unity.
Therefore, in the opinion of the experts, the May 10th document constituted a valid offer under Czech law, and Jan's acceptance completed a binding contract of sale.
The experts are also of the opinion that the Probate Court at Zlin duly supervised the performance of this contract, and that thereby the property of Thomas listed in the May 10th document became vested in Jan. The deed of delivery of June 28, 1933, vested in the heirs only the remaining property of Thomas Bata, and hence did not give the heirs title to the Leader shares.
The petition thus presents a theory of the case completely new to this proceeding. We shall refer to it as 'the tacit-offer' theory, recognizing the inadequacy of this label to express the concept of Czech law.
The petition and affidavits also aver that this evidence of Czech law has never been presented in any of the courts in which this dispute has been litigated, because unknown to Jan and his counsel. In explanation or excuse for such lack of knowledge, the petition avers:
[39 Del.Ch. 552] '6. Nor is this surprising, nor is it evidence of neglect, since in the first instance the law and tradition and custom is unique to the area, and the area has been closed throughout the years of this litigation as a result of the Communist takeover in Czechoslovakia. This law and custom and tradition does not apply with the same force throughout Austria, Germany, Switzerland and France. The Civil Law is usually looked upon as a unified whole, and thus this regional variant, grounded in local tradition and custom, was not ascertained previously.
'7. Furthermore, Defendant-Appellant Jan A. Bata was himself a generation removed from the peasant side, had no training in the law, had become deeply engrossed in the Bata shoemaking business at a very early age, and has been completely cut off from Czechoslovakian lawyers and from any opportunity to visit Czechoslovakia since this litigation arose. Unlike his much older brother Thomas, who spanned the transition from Moravian peasant farm owner and shoemaker to industrial urbanite, Jan began as an urban industrial employee and spent much of his youth in the United States. His limited means in the face of the multiplicity of legal attacks, and his remote location in Brazil have combined to make it understandable and excusable that he had not previously obtained this evidence of Czechoslovakian law and custom and tradition.'
The plaintiffs oppose the granting of the petition on the following grounds:
1. That the theory of the case now advanced is not newly discovered, but on the contrary was developed and rejected in the prior lawsuits; and with reasonable diligence Jan could have obtained expert testimony in time to present it to the court below in this case.
2. That the Czech Probate Court in this case did not supervise the performance of a contract consummated after Thomas' death, but on the contrary dealt only with ...