Wiener v. National Bank

• Decision Date: 13 June 1924
• Docket Number: No. 18606.,18606.
• Citation: 214 Mo. App. 691,263 S.W. 485
• Parties: WIENER v. NATIONAL BANK OF COMMERCE IN ST. LOUIS.
• Court: Missouri Court of Appeals

263 S.W. 485

214 Mo. App. 691

WIENER v.NATIONAL BANK OF COMMERCE IN ST. LOUIS.

No. 18606.

St. Louis Court of Appeals. Missouri.

June 13, 1924.

Rehearing Denied July 8, 1924.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Morris Wiener against the National Bank of Commerce in St. Louis.From a judgment for plaintiff, defendant appeals.Affirmed.

D'Arcy & Neun, of St. Louis, for appellant.Frumberg & Russell, of St. Louis, for respondent.

NIPPER, C.

This is an action brought by plaintiff against defendant for $920, money had and received.

The petition alleges that the defendant received of plaintiff on July 21, 1917, $450, and $25 per month thereafter until $920 had been paid.

Defendant in its answer stated that, on July 21, 1917—

"Plaintiff purchased froth defendant 4,000 rubles, on which he made a part payment of $450 on that day and agreed to pay the balance of the purchase price in monthly payments of not less than $25 each on the 10th day of each month, and defendant agreed to issue to plaintiff its check on Petrograd for said 4,000 rubles when paid for by plaintiff as above stated."

The answer further alleges that defendant, shortly after the 21st of July, 1017, in order to put itself in a position to issue said check, purchased 4,000 rubles for the account of plaintiff, and still holds said rubles for plaintiff.

The answer then pleads the custom in dealing with exchange in Russia, and that such custom is to promptly purchase the amount of rubles, and, when a draft or check is issued on a Russian bank for the American bank issuing the check, a letter is mailed to the Russian bank on which the check is drawn, called a letter of advice, and that no Russian bank will pay any check so drawn on it unless it receives this letter of advice from the American bank; that all mail service and communication between the United States and Russia was suspended and discontinued about December, 1917, and has never been resumed, making it impossible for the defendant to communicate with or forward letters of advice to any bank in Russia; that when plaintiff had completed his payments on November 8, 1018, he demanded from defendant a check on Petrograd for 4,000 rubles, but defendant refused to issue the check because it could not get a letter of advice to Russia.The bank offered to deliver to plaintiff the 4,000 rubles, but plaintiff refused to accept same.

The reply denied that plaintiff purchased any rubles from defendant, but that defendant agreed to issue to him its check for 4,000 rubles when paid for by plaintiff.There are other denials and admissions in the reply which it is unnecessary to set out.

At the conclusion of all the evidence the court gave a peremptory instruction to find for plaintiff for the amount of $920, together with interest from the date of demand, and defendant appeals.

The sole objection urged by the defendant in this court as a ground for reversal, although stated in different ways, is that the court erred in not permitting the defendant to show the custom existing and necessary to determine the manner of transmitting money to foreign countries, and to explain the meaning of this contract as well as the intent of the parties thereto at the time of its execution.

At the time plaintiff paid to defendant the first $450, he received from defendant the following receipt:

  "No. ____     St. Louis, Mo., 7/21 1917
                

"Received from Morris Wiener, 2905 Dixon street, $450, for part payment on Ro. 4000, check on Petrograd @ 23.Balance of $470 to be paid in monthly payments of not less than $25 each, on the 10th of each month."The National Bank of Commerce in St. Louis,

       "Per E. Oppenheimer."
                

It appears from the testimony of plaintiff that he went to the defendant bank for the purpose of buying rubles, and defendant agreed to sell him the same.Re went to the exchange department of the defendant bank, and had a conversation with Mr. Oppenheimer. who was in charge of that department.This occurred on the 21st of July, 1917.At that time he made the initial payment, and the defendant bank, through Mr. Oppenheimer, issued the above receipt.Plaintiff made all the payments as agreed in the contract, and when he had completed his payments in November, 1918, he demanded a check on Petrograd as called for by the contract.The defendant refused to issue to him any check after he had repeatedly demanded the same, and gave as a reason therefor that this country was not allowed to transact any business with Russia, and therefore nothing could be done for him.He then demanded the return of his money, which was also refused.

The court sustained an objection made by plaintiff's counsel to the reading of the deposition of Mr. Oppenheimer, showing the conditions existing between tills country and Russia with respect to the bank's inability to transfer a letter of advice to its Russian correspondent, and also as to the custom existing and followed in the matter of exchange between this country and foreign countries.The same objection was made and sustained as to the testimony of other witnesses offered by defendant.However, it does appear from the testimony of A. F. Brueggemann, a witness for the defendant, who was assistant to Mr. Oppenheimer at the time of the transaction and at the time of the trial in charge of the foreign department of the defendant bank, that, according to the custom in banking circles, the obligations of the defendant would be carried out by delivering to plaintiff its check upon a bank of Petrograd, Russia, for the payment to the plaintiff of the sum of 4,000 rubles.But to carry out the contract in any other way, the one...