257 Mass. 449 | Mass. | 1926
It having become necessary for the plaintiff in the settlement of the estate to pay to the intestate’s mother Eva Dudonis, who was an heir residing in Lithuania, $500, he delivered on May 7, 1921, a check payable to the defendant bank which agreed to transmit the amount in Lithuanian reichsmarks and obtain her receipt. The “remittance order,” accepted by the plaintiff May 10, 1921, states as condition, “It is expressly agreed that the Boston National Bank acts as Agent only for the sender. . . . The Boston National Bank, its Correspondent or Agent is to forward the money from any European Post Office or Correspondent to the required address. . . . The liability of the Boston National Bank to the sender is to be no greater than the liability of the European Post Office or Correspondent to us, and all claims in case of loss of money to be adjusted only when the amount is received from the European Post Office or Correspondent. . . . Refunds will be made at rate of exchange prevailing on date of refund. . . . This receipt must be produced when making inquiries regarding this order.” The defendant forwarded to the Riga Commercial Bank Schaulen Branch the amount in Lithuanian reichsmarks and on November 23, 1921, its correspondent wrote the defendant that, “The money and the receipt for this beneficiary has been returned to us today with the remark that Eva Dudonis has died, of which kindly take note.”
The correspondent bank was the defendant’s agent and being unable to make delivery the defendant was entitled to a return of the funds. The plaintiff on November 30, 1921, notified the defendant that he had not received the receipt, and on July 10, 1923, he wrote defendant calling its attention to the transaction and insisting “that you give the matter your attention.” But the defendant made no reply. The Riga Commercial Bank wrote the
The defendant as the plaintiff’s agent was bound to act in good faith, and to exercise ordinary skill and prudence as well as to inform the plaintiff of all material matters coming to its knowledge affecting his rights and interests. Merchants Bank at Baltimore v. Merchants Bank at Boston, 6 Met. 13. Holmes v. Cathcart, 88 Minn. 213, 216. The money could be used only as the plaintiff’s money for the purposes of the agency. If the death of Eva Dudonis made further performance impossible, it was the duty of
We find no error in the refusal of the defendant’s requests in so far as argued.
Exceptions overruled.