239 Mass. 32 | Mass. | 1921
This is an action of contract on a promissory note ■of the defendant, whereby the defendant promises to pay the
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.”
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,
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
So ordered.