ON PETITION FOR REHEARING. In a petition for rehearing appellant questions the validity of the statement in the original opinion that "The Uniform Judicial Notice of Foreign Law Act . . . dispenses with proof but 12. not with pleading." It would have been *Page 350 better to say that § 4 of the act, § 2-4804, Burns' 1933 (Supp.), § 251-4, Baldwin's Supp. 1937, requires that one asking that judicial notice be taken of foreign law must give reasonable notice "to the adverse parties either in the pleadings or otherwise." There is no such notice shown in the record. This section is annotated by the National Conference of Commissioners on Uniform State Laws in 9 Uniform Laws Annotated, p. 272, as follows:
"It is here provided that the party invoking the foreign law must give reasonable notice.
"There are strong reasons for it:
"In the first place, it is in analogy to the rule of pleading that if a foreign law is relied upon, it must be pleaded. This is now the law of several States. In such States the other party gets notice from the pleadings. But in the States where the pleading rule does not obtain, then if the Court may take judicial notice of such law, fairness requires that the opponent should be warned beforehand, so that he may prepare on that law. For example, if a plaintiff sued in Minnesota for damage done to freight by a railroad, and on the trial the plaintiff invokes the law of Illinois because the bill of lading was issued in Illinois, and if the plaintiff is ready with books of Illinois law, it is unfair to the opponent not to have given him notice that the Illinois law will be relied upon. This point is illustrated in the recent case of Corbett v. Terminal Ass'n, 1935, 336 Mo. 972, 82 S.W.2d 97, 102, where the Supreme Court was interpreting their statute of 1927 (corresponding to Sec. 1 of the present Draft Act), and held that the defendant, relying upon an Illinois law, could not on appeal ask that judicial notice be taken because he had neither pleaded it, nor asked the Court below to notice it. The Massachusetts Supreme Court decided the same point in 1928, Lennon v. Cohen, 1928, 163 N.E. 63, 264 Mass. 414. And in the Rule of Court proposed in 1932 by the Massachusetts Judicial Council, it is expressly provided that `it shall be the duty of *Page 351 counsel to call to the attention of the Court such authorities as they wish the Court to consider.'"
See Prudential Insurance Company v. Shumaker (1940),178 Md. 189, 12 A.2d 618.
Appellant cites 41 Am. Jur. Pleading §§ 9, 13 as declaring a different rule. The text in each section is based principally upon Loranger v. Nadeau (1932), 215 Cal. 362, 365,10 P.2d 63, 64, 84 A.L.R. 1264, wherein the court says: "If the science of pleading be strictly pursued it would seem to follow that since the foreign law now comes into the case by judicial knowledge as a fact, it would still be necessary to plead it, and the judicial knowledge would merely dispense with the proof." Thus indicating its approval of the proper rule, the court goes on to say that in California the cases have held otherwise and declines to deviate from previous decisions. It will be observed that the California court was not dealing with the Uniform Act which was not formulated until 1936. It has been adopted in but a few states. If it is to continue to be uniform, we should interpret it in the manner suggested by the Commissioners and followed in Prudential Insurance Company v. Shumaker, supra.
If we were to take judicial notice of the Massachusetts cases our conclusion in this appeal would be the same as stated in the original opinion. There is nothing peculiar about the common law of Massachusetts with respect to the elements necessary to constitute a public sale. Five cases are relied upon by appellant. Seder v. Gould (1931), 274 Mass. 223 174 N.E. 311, 76 A.L.R. 700, decides nothing on the subject. The parties stipulated that the sale was in accordance with the terms of the note. The questions decided concerned the consequences of the sale. In Farmers' Nat. Bank v. Venner (1906), 192 Mass. 531, 78 N.E. 540, the trial *Page 352 court, on evidence quite different from that in the case at bar, found that there had been a valid public sale, and the reviewing court quite properly declined to disturb the finding. The principal contention to the contrary was based on alleged inadequacy of price. In Winchester Rock Brick Co. v.Murdough (1919), 233 Mass. 50, 123 N.E. 344, the court, stating that the trial court's "finding will not be reversed unless plainly wrong" affirmed a decree. The pledge considered therein gave the pledgee the right to purchase at either private or public sale. The principal concern of both courts was, not whether the sale was public or private, but whether it was "made in good faith without intent to take advantage." To the same effect is Learned v. Geer (1885), 139 Mass. 31, 29 N.E. 215. In the other case, Downer v. Whittier (1887), 144 Mass. 448, 11 N.E. 585, the only question was whether the pledgor had waived notice of a private sale. We find in none of these five cases any suggestion that on the facts here in evidence the Massachusetts Supreme Court would reverse a finding of a nisi prius court that the sale was not public.
The petition for rehearing is denied.
NOTE. — Reported in 47 N.E.2d 966.