Temirecoeff v. American Exp. Co.

• Decision Date: 28 March 1933
• Docket Number: 24219.
• Citation: 172 Wash. 409,20 P.2d 23
• Parties: TEMIRECOEFF v. AMERICAN EXPRESS CO.
• Court: Washington Supreme Court

20 P.2d 23

172 Wash. 409

TEMIRECOEFF v. AMERICAN EXPRESS CO.

No. 24219.

Supreme Court of Washington

March 28, 1933

Department 2.

Appeal from Superior Court, Grays Harbor County; William E Campbell, Judge.

Action by Tyyne Temirecoeff, administratrix of the estate of Hazibee Temirecoeff, deceased, against the American Express Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded, with direction.

Kahin &amp Carmody and Orlo B. Kellogg, all of Seattle, for appellant.

A. E Cross, of Seattle, Clark W. Adams, of Aberdeen, and W. H Abel, of Montesano, for respondent.

MAIN Justice.

This action was brought to recover money delivered to the defendant to be transmitted to Russia and there placed to the credit of the plaintiff. The defendant denied liability and pleaded as an affirmative defense the statute of limitations. Subsequent to the trial and prior to the entry of the judgment, the plaintiff died, and the administratrix of his estate was substituted as party plaintiff. The trial resulted in findings of fact, from which it was concluded that the plaintiff was entitled to recover. Judgment was entered against the defendant in the sum of $2,047.50 and interest, from which it appeals.

The facts which will present the controlling question are not in dispute and may be summarized as follows: November 14, 1917, Hazibee Temirecoeff, the original plaintiff, delivered to the appellant, the American Express Company, the sum of $2,047.50, at its Seattle office, which was to be transmitted to a certain town in Russia and there deposited in a bank to the credit of the sender. At the time the money was delivered, there was issued by the appellant what is designated 'Foreign Money Order Receipt,' which provided for 'Return Bank Book.' The Seattle office transmitted the money to its New York office, and there the money was converted into Russian rubles, purchasing 15,000 thereof. A remittance of the rubles was made to a bank in Petrograd, Russia, with direction to deposit the same to the credit of Temirecoeff at the designated bank and return the bank book. Subsequent to this, owing to the disturbed conditions in Russia, it was not possible to ascertain, though the appellant used every diligent effort to do so, whether the remittance had ever reached Petrograd or what became of it.

The trial court found, based on the testimony of Temirecoeff, that, within three or four months after the money was delivered at the Seattle office, Temirecoeff called at that office to receive his bank book and was informed by the agent of the appellant then in charge that the remittance had been forwarded to Russia for deposit, but, owing to the disturbed and unsettled conditions which prevailed in that country, the return of the bank book would be delayed, and requested that he call again in about a month. From that time forward, every two or three months thereafter, Temirecoeff called at the Seattle office, and there was made to him practically the same statement as that indicated on his first call after having delivered the money. This continued until February 4, 1027, on which date Temirecoeff demanded the return of his money. The present action was begun January 23, 1930.

From the facts stated, it appears that Temirecoeff did not demand a return of the money until approximately nine years and three months after it had been delivered to the appellant at its Seattle office. For the purposes of this case, it will be admitted that, had Temirecoeff, at any time within the period of the statute of limitations, demanded the return of his money, he would have been entitled to it notwithstanding the fact that the failure of the appellant to perform the contract was due to the disturbed conditions in Russia.

The decisive question upon the appeal is whether the statute of limitations was a bar to the action. Section 157, Rem. Rev Stat., provides that an action upon a contract in writing, 'or liability express or implied' arising out of a written contract, must be brought within...