157 N.Y.S. 357 | N.Y. App. Div. | 1916
The plaintiffs, at the times hereinafter mentioned, were citizens of the United States, residents of the State of New York, doing business under the firm name of Gross, Engel & Co., and the defendants during the same time were doing business in London, Eng., under the firm name of Arthur Mendel & Oo. This action is brought to recover upon three causes of action, the complaint alleging, in substance, that on the 15th of April, 1914, the defendants, at London, Eng., accepted a bill of exchange drawn by and payable to the plaintiffs on August 15, 1914, at Leipzig, Germany, for 7,000 marks, German money; that on the 26th of February, 1914, the defendants likewise accepted a bill of exchange drawn by and payable to the plaintiffs, at the same place, on September 30, 1914, in the sum of 8,400 marks, German money; and that on the 22d of April, 1914, defendants also accepted a bill of exchange drawn by and payable to the plaintiffs, at the same place, on December 31, 1914, in the sum of 2,000 marks, German money. The complaint further alleges that these bills of exchange were duly presented for payment at the time and place where the same were payable, that they were not paid, and were thereupon protested at an expense to the plaintiffs in the first instance of 14 marks, 13 pfennigs; in the second, 28 marks, and in the third, 11 marks and 55 pfennigs. Each cause of action contains an allegation that a German mark is equivalent in United States money and worth the sum of twenty-three and eight-tenths cents, and was of the same value at the time of maturity of the respective bills of exchange. Judgment is demanded in a sum equivalent to the number of marks specified in the bills of exchange, computed at the rate of twenty-three and eight-tenths cents, with interest at the rate of seven per cent, the legal rate alleged to be due under the German law, from the-time of the respective defaults, together with the protest fees.
The answer put in issue the allegation of the complaint that a German mark is equivalent in United States money and worth twenty-three and eight-tenths cents, but admitted the acceptance and non-payment of the bills of exchange, and set up certain matters as a defense which it is unnecessary to con
At the trial no witnesses were sworn, the facts being stipulated, and, in addition to those hereinbefore stated, it appeared that four marks were worth, in United States money, on September 30, 1914, ninety-five and three-eighths cents, and on December 31, 1914, eighty-eight and five-eighths cents. The learned justice at Special Term found that a German mark was worth, in United States money, twenty-three and eight-tenths cents, and computed at this rate, with interest at the rate of six per cent from the time of the respective defaults, after deducting the amount of the counterclaim, with interest thereon from the time the same became due, left a balance of $3,893.89 due the plaintiffs, for which he gave judgment. The defendants appeal.
I think the judgment is substantially correct, and were it not for the fact that the conclusion reached by the trial court is the result of an application of an improper rule to be applied in ascertaining plaintiffs’ damage, the judgment, with a slight modification, might be affirmed, without opinion.
The complaint alleged the value of the mark to be that adopted by the trial court, but this allegation was put in issue by the answer. No evidence whatever was offered to establish that fact, and the finding in that respect is, therefore, without evidence to sustain it. Respondents’ counsel, in the brief presented, urges that under the rules adopted by the United States Treasury Department, for the collection of customs, the value of a mark is as found by the court, the inference being that the court could take judicial notice of that fact without any evidence to establish it. I do not think the court could take judicial notice of the fact, nor do I think that value applicable to ascertain the damage sustained by the plaintiffs in the present controversy. The defendants agreed to pay to the plaintiffs, in Germany, on the dates specified in the respective bills of exchange, the number of marks therein called for. Having failed to do this, the plaintiffs were entitled to recover, in United States-money—.the action being brought here — a sum
Plaintiffs being unable to redraw, did what they had a right to do, brought an action in this jurisdiction and they ought to recover here in United States money an amount which, at the time of the respective defaults, would have purchased what the defendants agreed to pay, together with the interest and protest fees. But it is strenuously urged that the amount to be recovered ought to be a sum which would purchase the number of marks called for at the time of. the trial instead of at the time the payments ought to have been made. There are authorities which seem to sustain this contention, of which Hawes v. Wooleock (26 Wis. 629) is, so far as I have been able to discover, the leading one. But there are also authorities,
There is no finding as to what a mark was worth in United States money on the 15th of August, 1914—■ at the time the first bill of exchange was payable. But accepting the amount found as of the value on September 30,1914 — the nearest date when the value of a mark is shown — and applying the rule as above indicated (which I think should be applied), then the plaintiffs were entitled to a judgment:
On the first bill........................ $1,669 06
Interest thereon at six per cent......... 99 86
-- $1,768 92
On the second bill..................... $2,002 88
Interest thereon at six per cent......... 104 82
-- 2,107 70
On the third bill....................... $443 13
Interest thereon at six per cent......... 16 47
-- 459 60
Protest fees.................................... 12 59
Making in all........ $4,348 81
Less the amount of the counterclaim.... $468 94
Interest thereon at six per cent.......... 33 84
-- 502 78
Balance..................................... $3,846 03
besides the costs and disbursements of the action.
The judgment appealed from, therefore, is modified as indicated in this opinion, and as modified affirmed, with costs to the respondents.
Findings of fact Nos. 7, 14 and 20 are reversed, and the conplusions of law, in so far as inconsistent with this opinion, are
Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.
Judgment modified as indicated in opinion, and as modified affirmed, with costs to the respondents. Order to be settled on notice.