American Express Co. v. Cosmopolitan Trust Co.

• Decision Date: 30 June 1921
• Citation: 239 Mass. 249,132 N.E. 26
• Parties: AMERICAN EXPRESS CO. v. COSMOPOLITAN TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 249

132 N.E. 26

AMERICAN EXPRESS CO.

v.COSMOPOLITAN TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1921.

Report from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by the American Express Company against the Cosmopolitan Trust Company. Reported from the superior court on the pleadings and an agreed statement of facts for determination by the Supreme Judicial Court. Judgment for plaintiff as stated in the opinion.

Plaintiff paid defendant $92,500 for a draft for check drawn on an Italian banking institution for 2,000,000 lire, which the Italian bank refused to pay on presentation by direction of the commissioner of banks, who had in the meantime taken possession of defendant's property and business. The first count in the declaration sought to recover the amount paid for the draft as money had and received to plaintiff's use. The second count sought to recover as damages the value in dollars of 2,000,000 lire on the date on which the commissioner of banks took possession of defendant's property and business, with interest at 6 per cent. from that date, and damages at the rate of 5 per cent. on the principal. The case was reported on the agreement that, if plaintiff was entitled to recover on the first count, judgment should be entered for it for $92,500, with such interest as was legally due, and, if not entitled to recover on the first count, that judgment should be entered for plaintiff for the sum in dollars equivalent to 2,000,000 lire at such rate of exchange and with such interest and damages as was legal.Fred T. Field, Samuel Hoar, and George K. Gardner, all of Boston, for plaintiff.

Peabody, Brown, Rowley & Storey and Howard W. Brown, all of Boston, for defendant.

PIERCE, J.

This is an action of contract. The declaration is in two counts. The first count is for money had and received to recover $92,500, with interest at six per cent. per annum from September 2, 1920, the date of the payment by the plaintiff to the defendant of said sum. The second count is for damages for the failure of the defendant to pay or cause to be paid to the plaintiff on presentment at Genoa, Italy, a check or draft which reads as follows:

‘2514

‘Boston, Mass. U. S. A.

‘Lit. 2,000,000 August Thirty-First, 1920.

‘Against our balance pay to the order of American Express Company, duplicate being unpaid, the sum of two million lire.

‘Cosmopolitan Trust Company.

‘To Credito Italiano, Genoa, Italy.

‘[Signed]

W. W. Henderson,

‘Assistant Manager, Foreign Department.

‘No. 25846.'

The defendant denied each and every allegation of the first count, and admitted all the allegations of the second count except such as related to the measure of the plaintiff's damages. The case came on to be heard before a judge of the superior court on the agreed statement of facts, and is before this court on a report of that judge, without decision, on the facts agreed. G. L. c. 231, § 111.

The agreed facts in substance show that on September 2, 1920, the plaintiff paid the defendant $92,500 and received for such payment a check or draft, a copy of which is as above set forth. The plaintiff immediately forwarded the instrument to its agent in Genoa, Italy. On September 28, 1920, its agent in Genoa duly presented the instrument to said Credito Italiano and duly demanded delivery of 2,000,000 lire. Credito Italiano thereupon refused to deliver said 2,000,000 lire or any part thereof, because it had been ordered by the defendant and by Joseph C. Allen, commissioner of banks of Massachusetts, acting in his official capacity and for and in behalf of the defendant, not to deliver the same. The instrument was duly protested and the protest thereof certified by a notary public, and the plaintiff caused the defendant and the bank commissioner to be properly notified of the said refusal.

The commissioner of banks of Massachusetts took possession of the property and business of the defendant, by virtue of the authority vested in him by St. 1910, c. 399, on September 25, 1920, and since that time has been in charge of the property and business of the defendant. In accordance with St. 1910, c. 399, § 8 (G. L. c. 167, § 28), the commissioner caused to be published a notice calling on all persons having claims against the defendant to present the same and make legal proof thereof not later than March 15, 1921. On January 27, 1921, the plaintiff tendered the defendant the said check or draft, and in compliance with the terms of the notice presented and made legal proof of a claim for $92,500 that being the amount paid by the plaintiff to the defendant September 2, 1920, with interest thereon. The commissioner refused to accept the said tender and rejected the claim, giving notice of said rejection to the plaintiff by letter dated January 27, 1921. This action was brought January 29, 1921.

On September 2, 1920, the rate of exchange was such that 2,000,000 lire were worth $92,500. On September 25, 1920, and on September 28, 1920, 2,000,000 lire were worth $83,717, and on January 27, 1921, 2,000,000 lire were worth $74,500. On the foregoing facts the

‘plaintiff claims that as a matter of law it is entitled to recover upon the first count of its declaration, and it is agreed by the parties that, if the plaintiff is so entitled to recover, judgment shall be entered for the plaintiff in the sum of ninety-two thousand five hundred dollars ($92,500) with such interest thereon as is legally due upon the facts herein agreed to. The defendant claims that the plaintiff as a matter of law is not entitled to recover upon said first count but the defendant admits that if the plaintiff as a matter of law is not entitled to recover upon said first count then the plaintiff is entitled to recover upon the second count of its declaration,...