265 Mass. 182 | Mass. | 1928
The plaintiff’s declaration is for money had and received. The bill of particulars sets out four several sums, each described as “Money paid for traveler’s check unused,” with specification of the amount. The defendant pleaded in answer a general denial and the statute of limitations. It was agreed that these several sums were received by the defendant on the dates alleged in 1915 and 1916, and that, when each was paid, the defendant issued to the plaintiff its “cheque” and its “remitter’s receipt.” These were the same in each instance, except as to dates and amounts. Each “cheque” was drawn on the Russo Asiatic Bank at Petrograd, Russia, in these terms: “On presentation of this Cheque, pay from our credit balance, To the order of Jacob Paulink” a stated number of “rubles.” The receipt issued to accompany the first “cheque” was of the tenor following:
“remitter’s receipt Caution.
Send Check by Registered Mail.
This check is sold with the understanding that it will be paid in accordance with the laws of the country on which drawn, which usually do not require identification of payees.
We have this day issued our Check No. 268698.
Amount of Foreign Money.....................Ro. 4500.
Rate 32.15 $1446.75
Payable to Jacob Paulink By Russo Asiatic Bank
*185 At Petrograd
Sold to Same
Dated Dec. 8, 1915.
American Express Company
F. A. Eastman
Cashier Financial Dept.”
The other receipts were in the same form differing only as to dates and amounts.
It is plain that the plaintiff cannot recover upon the contracts shown by the written instruments. The transactions as thus shown were completed purchases and sales of credit. No mistake or failure of consideration is shown. The plaintiff received what he bought. Beecher v. Cosmopolitan Trust Co. 239 Mass. 48. American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249. Carmen v. Higginson, 245 Mass. 511, 519.
The contracts were in writing. The plaintiff was bound by their terms in the absence of deceit on the part of the defendant even though not understanding their purport and ignorant of the English language. Secoulsky v. Oceanic Steamship Navigation Co. 223 Mass. 465. Long v. Agricultural Ins. Co. 257 Mass. 240, 243. Wilkisius v. Sheehan, 258 Mass. 240, 243. There was no such deceit.
There is no allegation and there is no proof of a breach of the contracts by the defendant. They were foreign bills of exchange. Presentment to the drawee, protest and notice of nonpayment were necessary in order to charge the defendant. Foreign Trade Banking Corp. v. Cosmopolitan Trust Co. 240 Mass. 413. G. L. c. 107, §§ 149, 152, 93, 84, 106, 112, 175, in substance the same as sections in force at the time these contracts were made.
Testimony as to contemporaneous oral agreement differing from that shown by the bills of exchange and receipts, even though admitted without objection, cannot be considered. The written contracts govern the rights of the parties. Goldband v. Commissioner of Banks, 245 Mass. 143, 150, and cases collected. Canton v. Thomas, 264 Mass. 457, 459. Questions asked of the plaintiff bearing on this point were excluded rightly. Moreover, no offer of proof was made
No fiduciary relation existed between the parties. The defendant did not receive the money of the plaintiff in any trust capacity. The transaction was purely contractual in its nature. It related to the subject of negotiable instruments, which is governed by statutes and general commercial usages and had no connection with the subject of trusts. Carr v. National Security Bank, 107 Mass. 45, 48.
The statute of limitations is a defence to the action, whether it be treated as beginning to run from the date of the issuance of the bills of exchange or upon the expiration of a reasonable time thereafter for presentment to the drawee, or from the time of the plaintiff’s demand on the defendant in 1916. G. L. c. 107, §§ 29, 94, 107, 208, 209. In any event, much more than the statutory period had elapsed after any possible cause of action deducible from the record accrued before the writ was sued out in December, 1925. G. L. c. 260, § 2.
Exceptions overruled.