Pierce, J.
This is an action of contract on a promissory note ■of the defendant, whereby the defendant promises to pay the *34plaintiff $700 on demand, at the office of the plaintiff, with interest at six per cent. The defendant in set-off filed a declaration to recover $642.30, as money had and received by the plaintiff to the use of the defendant. The case was heard without a jury in the Superior Court upon an agreed statement of facts. The-trial judge made alternative findings and rulings; and, both parties requesting it, reserved and reported the case upon the agreed facts to this court. “ It is agreed by both parties that any needed amendments of the pleadings may be made or may be considered as made.”
The agreed facts in substance are as follows:
On May 2, 1919, the defendant paid to the plaintiff in cash $642.30, and $700 by a promissory note on demand with interest,, a total sum of $1,342.30. In consideration thereof the plaintiff executed and delivered to the defendant the following instrument-entitled “ Foreign Currency Deposit Receipt: ”
“ Cosmopolitan Trust Co.
Number 1764 Foreign Amount
Lit. 10,000
Boston, Mass., May 2, 1919
The Cosmopolitan Trust Company has on deposit with it’s correspondent at Genoa, Italy the sum of Ten thousand 00/100 Lire for account of Riccardo Ciarla and agrees, upon demand, on surrender of this receipt properly endorsed, that the same shall be paid, plus interest at the rate of 2% per annum from date hereof.
This receipt is payable, at the option of the holder, either by a check for the foreign amount payable at said Genoa, Italy or by the Cosmopolitan Trust Co. in Boston, in IT. S. Dollars, at its then current buying rate of exchange.
Cosmopolitan Trust Company (Signed) by George M. Rich Treasurer.
(Endorsed) Riccardo Ciarla.”
*35On May 2,1919, the plaintiff had on deposit with banks of good financial standing in Genoa, Italy, credit in Italian currency to an amount more than equal to the 10,000 lire named in the above copied “ Foreign Currency Deposit Receipt,” and all other obligations of a similar nature then outstanding against it, and continuously thereafter maintained such a deposit until on or about January 1, 1920. It did not at any time have in the name of the defendant, or place to his credit or in his name, any sum of money in any bank in Italy. Since January 1,1920, it has maintained its balance of 10,000 lire or more in Genoa, and balances in Italian currency in banks in Italy in much larger amounts than that called for by the “Receipt,” but not equivalent at all times to the amount of its outstanding obligations of that character, namely, 10,471,547 lire outstanding on September 25, 1920, against 4,553,785 Italian lire bank balances. From May 2, 1919, to September 25, 1919, the plaintiff made no demand upon the defendant for the payment of the $700 note, and the defendant made no demand upon the plaintiff under or in any way relating to the agreement above copied. The defendant paid interest on the note as provided therein down to and including February 1, 1920.
On September 25, 1920, the commissioner of banks, under the provisions of St. 1910, c. 399, took possession of the property and business of the plaintiff and now has in his possession and control the property and business of the plaintiff, and is in the exercise of the powers and duties imposed upon him by the statute cited. On December 1, 1920, the commissioner of banks demanded of the defendant payment of the note; and at the same time the defendant demanded of the plaintiff the return to him of the said sum of $642.30 and the cancellation and return of the $700 note, and offered to surrender the receipt.
Upon the foregoing facts the defendant seeks to defeat the claim of the plaintiff to recover upon the note, and to establish his own right to recover upon his declaration in set-off $642.30, for the reasons (1) that the plaintiff “ did not at any time have in the name of the defendant or place to his credit or in his name any sum of money in any bank in Italy; ” and (2) that the plaintiff did not maintain abroad at all times since January 1, 1920, an amount of credits equal to all its outstanding obligations of a similar nature, *36although having at all times balances in Italian currency in Genoa, and in banks in Italy in much larger amounts than 10,000 lire.. We think it plain that neither contention is sound in law. Manifestly the statement of the contract that the plaintiff “has on deposit with it’s correspondent at Genoa, Italy the sum of Ten thousand 00/100 Lire for account of Riccardo Ciarla” could not be true in fact at the time the “ Receipt ” was purchased nor until the corresponding bank upon notification from the plaintiff should place the lire to the account or in the name of the defendant. The receipt makes it plain that it was not the purpose of the defendant, to have the lire placed in his name to his credit at the correspondent bank, by the provision of the instrument that the “ receipt, is payable, at the option of the holder, either by a check for the foreign amount payable at said Genoa, Italy or by the Cosmopolitan Trust Co. in Boston, in U. S. Dollars, at its then current buying rate of exchange.” Until the option of the defendant was. exercised by a demand on the plaintiff for check or money, the plaintiff could not be in default nor could there be a breach of its-contract. If we assume the receipt contract required of the plaintiff that after May 2, 1919, it should keep on deposit with its correspondent bank in Genoa 10,000 lire to meet any check which it should draw on that bank and deliver to the defendant, the admitted facts establish that it kept such a balance until its property was taken from it by the bank commissioner on September 25, 1920. There is not a word in the receipt which can be construed into an agreement express or implied that the optional drawing accounts of all persons holding receipts of a nature similar to the one held by the defendant should be protected at all times, by deposits in Italy or elsewhere in a sum sufficient to pay any draft, check or demand when presented.
We think the right of the defendant and the right of the plaintiff and their obligations the one to the other are to be measured as of the date when by operation of law the plaintiff was forbidden to prosecute further its business or to control the disposition of its property. That day was September 25, 1920, when the bank commissioner seized the plaintiff’s property. On September 25, 1920, the 10,000 lire had an exchange value of $420. It follows that the- plaintiff is entitled to recover the amount of the note, $700, with interest at six per cent from February 1, 1920; and the *37plaintiff in set-off is entitled to recover $420 with two per cent interest on that amount to September 25, 1920, and interest on the whole amount so ascertained from September 25, 1920, to the date of judgment. Judgment is to be entered for the respective parties accordingly.
So ordered.