Banco Mexicano De Commercio Industria v. Deutsche Bank

Decision Date21 January 1924
Docket NumberNo. 361,361
Citation68 L.Ed. 465,44 S.Ct. 209,263 U.S. 591
PartiesBANCO MEXICANO DE COMMERCIO E INDUSTRIA et al. v. DEUTSCHE BANK et al
CourtU.S. Supreme Court

Mr. Henry W. Taft, of New York City, for appellants.

[Argument of Counsel from pages 592-594 intentionally omitted] Mr. Assistant Attorney General Seymour, for appellees.

Mr. Justice McKENNA delivered the opinion of the court.

Appeal from the decree of the Court of appeals, affirming the decree of the Supreme Court of the District of Columbia, which dismissed the suit of appellants, brought in the latter court by them under the Act of Congress of October 6, 1917, entitled 'An act to define, regulate, and punish trading with the enemy, and for other purposes,' as amended June 5, 1920. 40 Stat. 411; 41 Stat. 977 (Comp. St. Ann. Supp. 1923, § 3115 1/2e).

The Deutsche Bank of Berlin was duly appointed liquidator of the Banco Mexicano, a banking corporation organized under the laws of Mexico, and authorized to act in the process of liquidation through Elias S. A. De Lima and Carlos Schulze as the representatives of the Banco Mexicano. Upon their appointment they proceeded with the liquidation of the affairs of the bank.

By virtue of their appointment and during the period they were acting as such liquidators, they were authorized to make loans of the assets of the bank for its account, and to collect, and, if necessary, to sue for and collect, upon the claim which is the subject of this action.

They as liquidators for and on behalf of the Banco Mexicano made a loan of 500,000 gold dollars in New York City on December 15, 1916, to the Deutsche Bank of Berlin, a banking corporation existing under the laws of the German Empire, for six months, with interest at the rate of 5 per cent. per annum.

The amount was paid to Hugo Schmidt, the agent of the latter bank, at its place of business in the United States, and the bank agreed to repay the same in that city on June 15, 1917, with interest at the rate above mentioned.

Upon receiving that amount, represented by check, the bank forthwith deposited the same with the Guaranty Trust Company of New York to the credit of its general bank account, which it then had with that institution.

On April 6, 1917, war was declared between the United States and Germany. Thereafter, as the appellants are informed and believe, under the provisions of the Trading with the Enemy Act and other statutes in such case made and provided, all moneys, securities, and property owned by the Deutsche Bank in the United States, or held for it by others, were turned over to or seized by the Alien Property Custodian of the United States, and have ever since been held by him.

It is averred, on information and belief, that the money so loaned was never transferred from the United States physically or otherwise, but constituted a part of the balance of the general deposits and securities and other property in the United States of the bank, which were taken over and seized by the Alien Property Custodian. The total amount of such balance, and the total value of the securities and property, are unknown to appellants, but are sufficient, as they are informed and believe, after the payment and satisfaction of all other claims and demands, fully to pay, satisfy, and discharge the claim and demand of the appellants arising upon the loan.

After the loan was made, and until its balance, securities, and other property were turned over to the Alien Property Custodian, the Deutsche Bank continuously kept in the United States sufficient funds and property over and above what was necessary to pay and discharge all other claims and demands of every kind, to repay the loan, with interest, and the funds and securities were kept in the United States for the express purpose and with the intention by the use thereof of repaying the loan when it fell due; and the bank would have, in the ordinary and usual course of business, repaid the same when the debt fell due, if war had not intervened between the United States and Germany.

On June 15, 1917, there became due to appellants from the Deutsche Bank the amount of the loan, and it is still due, although they have made demands for the payment thereof upon the bank and the Alien Property Custodian.

In pursuance of section 9 of the Trading with the Enemy Act, the appellants, as liquidators and in behalf of the Banco Mexicano, or on about May 27, 1920, filed with the Alien Property Custodian a notice of claim, under oath, and in such form and containing such particulars as was required by that section and as the Custodian had prescribed, demanding payment of the debt above described, with interest thereon then accrued, by the Custodian, from the money or other property belonging to the bank, or held by him, or by the Treasurer of the United States.

On or about the same day a similar application was filed with the President of the United States. Neither the President nor the Alien Property Custodian has paid the debt or the interest thereon.

Appellants aver that since December 15, 1916, the Deutsche Bank kept in the United States sufficient cash and marketable securities over and above its obligations to enable it to pay the loan and interest, and that the Alien Property Custodian and Treasurer of the United States now hold sufficient cash and securities, formerly owned by the bank and seized by the Custodian, over and above all claims against the same, to pay the debt with interest.

Appellants are advised and believe that, under the law of New York state, and in the event of default by the Deutsche Bank in the payment of the loan, they would have had, on June 15, 1917, and ever since, and now have, a cause of action against the bank upon which they could have sued and can now sue, and could have procured and can now procure, the issue of a writ of attachment under which the funds and securities of the bank in New York City could have been and now can be levied upon and seized and applied in satisfaction of a judgment obtained.

It is averred that by reason of the foregoing facts the debt of the appellants arose with reference to the money and other property within the meaning and intention of subdivision (e) of section 9 of the Trading with the Enemy Act.

A motion to dismiss the bill of appellants was made, the grounds thereof being:

(1) Appellants are claimants other than citizens of the United States, and that the debt which they are seeking to recover did not arise with reference to money or any other property held by the...

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39 cases
  • Fuller v. United States
    • United States
    • U.S. District Court — Eastern District of California
    • August 12, 1985
    ...in the statute, since the legislative will must be expressed in the words it chooses. Banco Mexicano De Commercio e Industria v. Deutsche Bank, 263 U.S. 591, 602, 44 S.Ct. 209, 211, 68 L.Ed. 465 (1924). Indeed, it is for this very reason that the first canon of statutory construction is to ......
  • Williams v. Williams
    • United States
    • U.S. District Court — District of Maryland
    • December 27, 1976
    ...1446 (1913); Banco Mexicano de Commercio e Industria v. Deutsche Bank, 53 App.D.C. 266, 289 Fed. 924, 928 (1923), aff'd, 263 U.S. 591, 44 S.Ct. 209, 68 L.Ed. 465 (1924). See also Annot. 70 A.L.R. 5 17 In a few cases removal of garnishment actions instituted in state courts on the authority ......
  • Miller v. Robertson Robertson v. Miller
    • United States
    • U.S. Supreme Court
    • November 17, 1924
    ...616, 35 C. C. A. 488; Mather v. Stokely, 218 F. 764, 767, 134 C. C. A. 442. While the suit, as held in Banco Mexicano v. Deutsche Bank, 263 U. S. 591, 603, 44 S. Ct. 209, 68 L. Ed. 465 (affirming 53 App. D. C. 266, 289 F. 924), is one against the United States, the claim was not against it.......
  • Kondo v. Katzenbach, 19282-19284.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 13, 1966
    ...maintenance of the action. There is no doubt that this action is a suit against the United States. Banco Mexicano v. Deutsche Bank, 263 U.S. 591, 602-603, 44 S.Ct. 209, 68 L.Ed. 465 (1924); Codray v. Brownell, 93 U.S.App. D.C. 112, 207 F.2d 610 (1953), cert. denied 347 U.S. 903, 74 S.Ct. 42......
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