201 A.D. 485 | N.Y. App. Div. | 1922
The plaintiff’s predecessor deposited with the defendant upwards of $8,000 upon the agreement of the defendant to cable a transfer of credit to the Deutsche Bank in Berlin to the credit of Gebruder Rossie. This was on March 21, 1917. This country entered the war on April sixth. Thereupon the defendant was informed that the cable had not been sent. At the time of the attempted sending of the transfer cable the defendant also mailed a confirmatory direction to the Deutsche Bank to make payment as directed in the transfer cable. That was not received and the defendant was not informed that it was not received until the 30th of December, 1919. The plaintiff then, as successor to the depositor bank, has sued to recover the amount of moneys deposited, as upon a
That the purchase of a cable transfer under the facts submitted constitutes an executory contract would seem to be established by the case of Equitable Trust Co. v. Keene (232 N. Y. 290). Treating this as an executory contract under the facts stipulated, it was agreed that the amount to be transferred should be payable abroad upon the 22d or 23d day of March, 1917. By reason of war conditions the cable transfer was never transmitted, nor was the mail confirmation of that transfer received. The entire failure of the defendant to perform this executory contract authorized the rescission by the plaintiff of its contract and a recovery in an action for moneys had and received to the extent of the deposit made. In the case of Scheibe v. Zaro (199 App. Div. 807) this court denied the right of rescission of an executory contract to transmit moneys to a savings bank on the ground that the parties could not be put in statu quo. In the case at bar, however, there are no facts stipulated which show that the defendant would in any way be harmed or embarrassed by the rescission. The facts originally stipulated were to the effect that the defendant had on deposit with its foreign correspondent marks of equal exchange value with the moneys here deposited. This fact, so stipulated, has been amended by a subsequent stipulation submitted, to the effect that on March twenty-first, when the cable transfer was agreed upon, the defendant had a deposit in marks with the said Deutsche Bank in Berlin, but it has been impossible to determine the exact balance on that date to the credit or debit of the defendant in said mark account of the defendant on the books of said Deutsche Bank. Nor does it appear that, if the defendant had such marks on deposit with the Deutsche Bank, they could have been sold for other currency, which would have avoided loss to the defendant by reason of the depreciation of the German mark. The contract, as expressed in the receipt, provides: “ This transfer is sold without responsibility to the Equitable Trust Company of New York or its correspondents for delays, errors or omissions of the telegraph companies, or for any other causes beyond its control.” Even if the facts stipulated showed a deposit with the Deutsche Bank of marks sufficient in value to meet the transfer agreed to be created, this clause worded by the defendant itself would not be sufficient to exempt the defendant from liability for repayment of moneys had and received upon
It follows that judgment should be directed for the plaintiff for the amount demanded.
Clarke, P. J., Laughlin, Merrell and Greenbaum, JJ., concur.
Judgment ordered for plaintiff for the amount demanded. Settle order on notice.
