Augello v. Hanover Trust Co.

• Decision Date: 27 June 1925
• Parties: AUGELLO v. HANOVER TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 160

148 N.E. 138

AUGELLO

v.HANOVER TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1925.

Report from Superior Court, Suffolk County; A. R. Weed, Judge.

Action by Cosimo Augello against the Hanover Trust Company. On report after verdict for plaintiff, to which defendant saved exceptions. Exceptions overruled, on condition that remittitur be filed.

J. P. Walsh, of Boston, for plaintiff.

F. H. Smith, Jr., of Boston, for defendant.

CROSBY, J.

This is an action of contract or tort to recover payments, amounting to $7,139, made by the plaintiff on six contracts for the purchase of Italian lire. The claim in tort was waived by the plaintiff at the trial in the superior court. Two of the purchases were paid for in full at the time they were made and receipts were delivered by the defendant to the plaintiff. On the other four purchases the plaintiff made payments on account and signed contracts to pay the balance on or before designated dates with interest at six per cent. The commissioner of banks of the commonwealth, acting under authority of St. 1910, c. 399, now G. L. c. 167, § 22, took possession of the property and the business of the defendant on August 11, 1920. The plaintiff filed two proofs of claim against the trust company: one for $5,039, paid the defendant as the full price of two of the purchases; and the other for $2,100, paid as partial payments on the other four. The balances due on the partly paid contracts amounted to $11,076.44. Both claims were rejected and this action was brought. The plaintiff's second substitute declaration, upon which the case was tried, was in seven counts, six respectively for the amount paid on each of the purchases, and a count for money had and received in the sum of $7,139, the total of the plaintiff's payments on all the purchases.

The defendant's answer was a general denial and plea of payment. It also filed a declaration in set-off in five counts, in which it sought to recover the unpaid balance with interest on the four contracts upon which only partial payments had been made.

On May 1, 1919, the plaintiff paid the defendant $4,400, and was given a receipt for 31,500 lire. On November 14, 1919, the plaintiff paid the defendant $839 and was given a receipt for 10,000 lire. It was agreed at the trial that Paola Augello, the wife of the plaintiff, had released any and all claims against the trust company arising out of the receipt dated May 1, 1919; and the fact that it was written for the account of Cosimo Augello and Paola Augello ‘is not to be considered as material on the issues raised in the case.’

The other four contracts, all made in 1919 and dated May 15, June 12, July 16, and August 11, respectively, were for the purchase of certain lire from the defendant upon which partial payments had been made, and in each contract it was stipulated that the balance due should be paid on or before a date therein specified.

The form of the receipts given for the completed purchases was substantially the same and recited that the defendant ‘agrees upon demand on surrender of this receipt properly indorsed that the same shall be paid plus interest at the rate of 2 1/2% per annum from date hereof. This receipt payable either by check for the full amount or by United States dollars at the current rate of exchange on the date of delivery.’

As to the purchases on which partial payments had been made, the plaintiff was entitled to delivery of the lire at any time on demand on or before the dates specified in the receipts respectively. The evidence showed that the purchases were made through one Nobile, a clerk in the employ of the defendant in its bank. The plaintiff testified, in substance, that, after having made all his purchases, on several occasions he went to the bank and demanded of Nobile the lire he had bought by virtue of the contracts above referred to; that he was told on each occasion the bank could not give him the lire as it did not have them; that the trust company had a large deposit of lire in Naples and as soon as the lire were received by the bank they would be delivered to him; that he need not worry, the company was perfectly responsible.

One Corsino testified that he took the plaintiff to the bank and told Nobile the plaintiff wanted to buy some Italian lire; that he (Corsino) bought 50,000 lire; and the plaintiff bought about 32,000, for which Nobile gave the plaintiff a receipt and told him any time he wanted the lire he could have them.

The plaintiff testified that when he made the last purchase, on November 14, 1919, Nobile said to him that the bank expected ‘all our lire here and you shall have them all, all the lire that you have bought.’ He further testified that, in November, 1919, after all the purchases had been made, he went to the bank and asked for the money that he had paid on the six transactions and was told by Nobile that he would have to wait a little while longer for the lire; that he would finally receive them; that they had none to give him at that time. The plaintiff afterwards indorsed the receipts for the two fully paid purchases to Pistorino and Yunes. He testified that he made these indorsements two or three months before the bank was closed as he was unable to get the lire and thought that he would turn the receipts over to Pistorino to get them for him.

One Merrill, a witness called by the plaintiff, testified that he was manager of the foreign department of the trust company from July 16, 1919, until it was closed on August 11, 1920; that Pistorino saw him with reference to the indorsements of the two receipts by the plaintiff two or three months before the trust company was closed, and demanded drafts on the two receipts; that he (Merrill) told him he could not give him drafts because of the unpaid contracts, but that if Pistorino would guarantee payment of the contracts, he would give him the drafts; but that Pistorino refused to do so.

[1] It is plain that the receipts which were offered in evidence were properly indorsed, and that it could have been found that they were duly presented to the defendant by the plaintiff's authorized agent. Upon such a finding it was the duty of the defendant to deliver to Pistorino the lire or a check or draft or money of the United States for the amount called for in the receipts. The six purchases made by the plaintiff were separate and independent transactions, and the defendant had no right to refuse to deliver the lire, or the equivalent, on these fully paid contracts, until the balance due on the other purchases was paid; nor could the defendant rightfully impose as a condition of such delivery that Pistorino should guarantee the payment of the amount due from the plaintiff on all the contracts.

The jury found, in answer to special questions submitted to them, that the plaintiff presented to the defendant, properly indorsed, the receipts for the two...