Parker v. Hoppe

• Decision Date: 17 November 1931
• Parties: PARKER v. HOPPE.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 333

178 N.E. 550

PARKER

v.HOPPE.

Court of Appeals of New York.

Nov. 17, 1931.

Action by Joshua Parker against Olga I. Hoppe. From a judgment of the Appellate Division (231 App. Div. 666, 248 N. Y. S. 454) reversing an order of Special Term which denied plaintiff's motion for summary judgment, defendant appeals.

Judgment of Appellate Division reversed, and order of Special Term affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Vermont Hatch and Thomas Kiernan, both of New York City, for appellant.

Harris Jay Griston, of New York City, for respondent.

John W. Davis, Frank L. Polk, Allen Wardwell, George H. Gardiner, and Lansing P. Reed, all of New York City, amici curiae.

Walter H. Pollak and Ruth I. Wilson, both of New York City, amici curiae.

CRANE, J.

On August 10, 1917, plaintiff's assignor, Kamendrovsky, entered into a written contract with the defendant for the purchase of 5,000 poods (approximately 85 tons) of Scotch paraffin wax at the price of 24 rubles per pood, c. i. f. Archangel, or 120,000 rubles for the entire purchase. The was had been purchased by the defendant abroad and was expected at Archangel during the navigation season. Due to climatic conditions as well as international arrangements, the contract contained this clause: ‘A delay in the delivery of the merchandise cannot serve as a basis for a refusal on your part to accept same.’ The terms of the contract were these: ‘In payment of this contract you have to pay us now the amount of Rub. 100,000-and the balance immediately upon delivery of the merchandise at Archangel. Delivery upon arrival at Archangel depending on conditions of shipment as stated above, excepting unavoidable obstacles.’ The contract was made in Moscow, Russia, and on August 11, 1917, the defendant was paid at Moscow the 100,000 rubles called for by the agreement. The paraffin wax was not shipped from England, where it was, during the next open season for navigation, and was kept in England by the defendant until she sold it in April of 1918, just prior to the shipping season for that year, which opened in May. The wax was never delivered or tendered to Kamendrovsky, the defendant completely failing to perform her contract. She kept, however, the 100,000 rubles, and this action has been brought in New York to recover the same, or their value in our currency. Kamendrovsky has taken the position that he rescinded this contract for nonperformance on March 17, 1921, by a letter in which he stated to the defendant: ‘I purchased of you in Moscow 5000 poods of paraffin, which I have not received and which has been left in London, and the cost of which has been covered by me personally to the extent of 100 thousand rubles and the balance of the sum, which I do not know, has been paid for my account by Mr. Dobkin. I am desirous of having this account also settled in cash money. I do hope that you will not refuse to grant my request, and I thank you in anticipation.’

The rate of exchange on the day of payment to the defendant, August 11, 1917, has been fixed by agreement or consent of the parties at 4.41 rubles to the United States dollar, or 22.676 cents to the ruble. On this basis the 100,000 rubles were valued in our currency at $22,676, for which sum, with interest from the date of payment, the Appellate Division has awarded summary judgment to the plaintiff. The defendant-appellant admits the breach or failure to perform, but disputes the amount of damages awarded, claiming that the date for figuring the rate of exchange or the amount of damages should be taken as of the day of the breach and not as of the day of payment.

This is a Russian contract, made at Moscow, where the purchase price was paid. The goods were to be delivered in Russia. What were Kamendrovsky's damages or his rights on breach or failure of performance? He could have sued for damages or to recover the purchase price. He has sought the latter remedy, and if this action had been brought in Russia he would have received, no doubt, his 100,000 rubles, but he would have received them as the currency of the country and its medium of exchange. His judgment would have been for the 100,000 rubles with interest from the date of payment, figured as rubles, because this would be the money of the realm which he had paid to the defendant. The ruble would be taken as money and not valued as a commodity. No attention would be given to the purchasing value of the ruble or its drop in value on the foreign exchanges.

When one sues here to recover $100,000 paid a year or more ago as the purchase price on an unfulfilled contract, he is given by the courts the $100,000, with interest from the date of payment, without any consideration to the purchasing value of the dollar. The dollar is taken as money and not as a commodity. We would not expect that an action brought in a foreign country upon such a contract tract would give a profit to the plaintiff by exchange fluctuations. The money value of the judgment obtained in the foreign country should and would equal the value here of the dollar as of the time the plaintiff was entitled to it.

This is the rule to be applied to this case. The plaintiff sues here to recover the value of the rubles which would have been given to him by a court in Russia, provided those courts were functioning properly and in accordance with law. However, in order to ascertain the value of the $100,000 rubles returned to him in dollars, it is necessary to figure a rate of exchange which fluctuates with time, and it is reasonable and just to take the time as of the date when Kamendrovsky was entitled to receive them. Ordinarily this would be the date of the breach of the contract or the date of the demand. We do not need to determine on this application for summary judgment whether it should be the one of these or the other (i. e., the date of breach or the date of the declaration of an election to rescind), for there is no evidence that there was any substantial difference between the two. The plaintiff makes no point that such a difference exists, but contends for a different date altogether, the date, that is to say, when the rubles were paid in Russia in accordance with the contract. That contention we reject, holding that the date of payment is not the one to be applied.

In Sokoloff v. National City Bank of New York, 250 N. Y. 69, page 81,164 N. E. 745, 750, this court said: ‘The contract was vroken, as of September 1, 1918, when the Petrograd branch ceased to function. On that date, he was entitled to 120,000 rubles in Petrograd He wanted them and did not get them. His damages are to be measured according to the value of rubles as of that date in Petrograd, measured in dollars in New York City, where he has sought his remedy.’ See, also, Richard v. American Union Bank, 241 N. Y. 163, 149 N. E. 338, 43 A. L. R. 512;Richard v....