Grouf v. State Nat. Bank of St. Louis

• Citation: 76 F.2d 726
• Decision Date: 28 March 1935
• Docket Number: No. 10054.,10054.
• Parties: GROUF v. STATE NAT. BANK OF ST. LOUIS.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

76 F.2d 726 (1935)

GROUF v. STATE NAT. BANK OF ST. LOUIS.

No. 10054.

Circuit Court of Appeals, Eighth Circuit.

March 28, 1935.

Samuel R. Wachtell, of New York City (Theodore Rassieur and John P. McCammon, both of St. Louis, Mo., and Harold J. Manheim, of New York City, on the brief), for appellant.

Marion C. Early, of St. Louis, Mo. (Ivon Lodge, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

For opinion on prior appeal of this case, see (C. C. A.) 40 F.(2d) 2.

The merely formal facts and many of the undisputed facts which are set out in the former opinion need not be here repeated.

The action was upon a letter of credit and drafts drawn upon the faith of the same.

A jury was duly waived and the case tried to the court.

The letter of credit was issued August 13, 1915, by appellee, addressed to Anglo-Austrian Bank, whose name was subsequently changed to Anglo-Austrian Bank, Limited (hereinafter called the Austrian Bank). The beneficiaries of the letter of credit were Francis L. Stuever and Celia M. Stuever, his sister, American citizens then temporarily residing in Vienna, Austria.

Upon the faith of and pursuant to said letter of credit, the Austrian Bank cashed, and paid in kronen, drafts drawn by the Stuevers as follows:

                  To Francis L. Stuever, February 1, 1916 .........   $ 100.00
                  To Celia M. Stuever, March 10, 1916 .............     400.00
                  To Celia M. Stuever, March 13, 1916 .............     400.00
                  To Celia M. Stuever, March 17, 1916 .............     400.00
                  To Celia M. Stuever, March 24, 1916 .............     400.00
                  To Celia M. Stuever, March 29, 1916..............     400.00
                  To Francis L. Stuever, April 7, 1916 ............     100.00
                  To Celia M. Stuever, April 26, 1916 .............    3100.00
                  To Francis L. Stuever, April 28, 1916 ...........    4150.00
                                                                     _________
                                                                      $9450.00
                

Owing to the World War then existing, it was not feasible for the Austrian Bank to transmit some of the drafts drawn; and in December, 1916, it had in its possession five of them, of the face amount of $8,150.

Findings of fact 11, 12, 13, 14, and 15 of the trial court covering some of the disputed facts are as follows:

"11. The Court further finds that on or about October 26, 1916, the Anglo-Austrian Bank requested Dr. Stuever to personally reimburse it for the $8100.00 drawn by him and his sister, that he undertook to do so, and procured a remittance from the Equitable Trust Co. of New York, through the Vienna Bank Union of the sum of 69,528 Kronen then worth $8100.00. This money was received by the Anglo-Austrian Bank, and both this money and the drafts drawn by the Stuevers and aggregating the said sum of $8100.00 were retained by said Bank. That the Bank while holding this money refused to apply it on the payment of the drafts for the sole reason that it deemed itself payable in dollars and not in Kronen, and inferentially would have then suffered a small loss by so doing. That the Bank insisted on holding this money in a savings account but the Stuevers refused to agree and insisted that the money be applied on the drafts. In March, 1923, the said Bank forwarded a savings account book to the Stuevers, without any authority for such act. At the time this book was sent the 69,528 Kronen were worth less than 30 cents.

"12. The Court finds that on or about October 26, 1916, the Anglo-Austrian Bank presented to and demanded payment from Francis L. Stuever and Celia M. Stuever of five checks it had previously cashed for them pursuant to letter from defendant, State National Bank, to said Anglo-Austrian Bank, dated August 13, 1915, and the Court further finds that said Anglo-Austrian Bank had paid said five checks to said Stuevers by delivering to them the equivalent thereof in Austrian Kronen, and the Court further finds that the dates and amounts of said five checks as presented to said Francis L. Stuever and Celia M. Stuever by said Anglo-Austrian Bank were as follows:

                  By Celia M. Stuever
                     Check dated March 16, 1916 .........   $ 400.00
                     Check dated March 29, 1916 .........     400.00
                     Check dated April 28, 1916 .........    3100.00
                  By Francis L. Stuever
                     Check dated Feb. 1, 1916 ...........     100.00
                     Check dated April 28, 1916 .........    4100.00
                                                            ________
                                      Total .............   $8100.00
                

"The Court further finds that said Anglo-Austrian Bank represented to said Stuevers that it could not forward said checks for payment to defendant, State National Bank in St. Louis, on account of danger of seizure by the military censor, and the Court finds that said Anglo-Austrian Bank proposed to said Francis L. Stuever and Celia M. Stuever that if they would pay the equivalent of said checks in Kronen, the same would be accepted by it as payment of said five checks, and the Court further finds that said Francis L. Stuever and Celia M. Stuever then and there accepted said proposal and agreed that they would request their agents in St. Louis, Missouri, to cause to be forwarded to said Anglo-Austrian Bank in Vienna, Austria, the equivalent of said checks in Kronen, and the Court further finds that on or about October 26, 1916, said Francis L. Stuever mailed a letter to their St. Louis agents, requesting that money be forwarded to said Anglo-Austrian Bank to pay said checks, and the Court finds that a check for $8100.00 was by said agents delivered to defendant, State National Bank in St. Louis, for payment of said checks and that pursuant to instructions said State National Bank did arrange, through the Equitable Trust Company of New York City, New York, to forward, and did forward, 69,528 Kronen, to said Anglo-Austrian Bank, that being the full equivalent in Kronen of said five checks, and the Court further finds that said 69,528 Kronen was delivered to and retained by said Anglo-Austrian Bank, and the Court finds that the receipt and retention of said 69,528 Kronen by said Anglo-Austrian Bank constituted payment and satisfaction pro tanto of the demands herein sued upon.

"The Court further finds that in listing the check drawn by Francis L. Stuever, dated April 28, 1916, the amount of said check so furnished by said Anglo-Austrian Bank to said Francis L. Stuever and Celia M. Stuever, was designated by said Bank as $4100.00, and the Court finds that it appears from the check offered in evidence that the correct amount of said check was $4150.00, but the Court finds that the error was the error of the Anglo-Austrian Bank and not of said Stuevers.

"13. The Court further finds that the sum of 69,528 Kronen received by the Anglo-Austrian Bank was at the time of such receipt the equivalent of $8100.00, and was not payment in full of the drafts aggregating $9450.00 in suit and did not discharge defendant's full liability on said drafts, but only partially.

"14. That F. L. Stuever, and Celia M. Stuever were secondarily liable to said bank on account of having presented the said drafts, and that when the said bank received 69,528 Kronen, they requested the said bank to apply the same in partial payment of the obligation represented by the said drafts, but the said bank held both the drafts and the Kronen and refused to apply the said funds in partial payment of the amount then due.

"15. That in December, 1916, Kronen was the lawful medium of exchange in Austria, and at that time foreign exchange including American dollars became the property of the Government, and holders thereof were compensated in Kronen. (The answer on page 109 of the transcript of the witness Dr. Pieta, who testified with respect to the Austrian Law, which was stricken at the trial, is now reinstated as evidence in this cause.)"

The evidence on the second trial supplemented that given on the first trial; and the findings of the court on the second trial materially modified and supplemented the findings made on the first trial.

Finding 12 on the second trial is substantially new. It covers an alleged agreement between the Stuevers and the Austrian Bank as to the Bank's receiving kronen in payment of the drafts which had been cashed but had not been transmitted to the Bank at St. Louis.

Findings 14 and 15 are substantially new.

We have examined the evidence in the record relative to the facts stated in the above-mentioned findings, and are of the opinion that the findings are supported by substantial evidence. Under the familiar rule, they will, therefore, not be disturbed.

The situation disclosed is, accordingly, somewhat as follows: The Austrian Bank held five drafts amounting to $8,150, which it had cashed for the Stuevers on the faith of the letter of credit in their behalf from the appellee Bank in St. Louis. The Austrian Bank, finding it not feasible to forward the drafts to St. Louis on account of war conditions, requested the Stuevers to personally reimburse it for the drafts so held, and the Bank agreed that if the Stuevers would pay the equivalent of said drafts in kronen, the same would be accepted by it in payment of the drafts. The Stuevers accepted the proposal and agreed to instruct their agent in St. Louis to forward to the Austrian Bank the amount in kronen. A list of the drafts with dates and amounts was furnished by the Bank to the Stuevers. The total amount so furnished was $8,100. The true amount of the drafts held by the Bank was $8,150; but by an error of the Bank, the amount was stated to the Stuevers as $8,100.

The Stuevers carried out their part of the agreement, and the result was that there were placed in the hands of the Austrian Bank 69,528 kronen, the equivalent at that time of $8,100.

The Austrian Bank refused to apply these kronen as a payment on the drafts on the sole ground, as stated at that time, that it was entitled to...