256 Mass. 191 | Mass. | 1926
On September 8, 1920, the Fidelity Trust Company was doing business as a trust company. September 28 of that year it was closed by order of the commissioner of banks. April 7, 1921, it was decreed by the Supreme Judicial Court that all its assets be sold to the Liberty Trust Company and that that company assume all liabilities of the Fidelity Trust Company. On April 18 this transaction was carried out. The plaintiff is the assignee of the Liberty Trust Company. The defendant Pan C. Athens will be referred to as the defendant.
On September 8, 1920, the defendant purchased from the Fidelity Trust Company “a check or draft made by the Fidelity Trust Company, and drawn upon the Irving National Bank of New York” in the sum of $3,500 payable to one Galanopoulos, a resident of Greece, in part payment of a shipment of olive oil. The defendant sent the check by mail to Galanopoulos. The draft, bearing the indorsement of Galanopoulos to another person, and the indorsement of that person to the Commercial Bank of Greece, and its indorsement to the National City Bank of New York, “was returned to America, reaching the Irving National Bank” on November 9, 1920, where payment was refused because the drawer was in the hands of the bank commissioner..
The defendant has not received the shipment of olive oil. He went to the office of the Fidelity Trust Company and requested it not to honor the draft, and was told by the employees that if the draft came in “it would not be paid.” In January, 1921, he signed a proof of claim for $3,500 containing the statement “Check lost in transit”; at this time be surrendered the purchaser’s receipt given him when he
On April 18, the day upon which the sale to the Liberty Trust Company was carried out and the business of the Fidelity Trust Company taken over by the Liberty Trust Company, the Second National Bank of Boston, as the collecting agent of the National City Bank of New York, received payment on the draft from the Liberty Trust Company on presentation, and surrendered the draft, placing thereon the indorsement of the Second National Bank. On April 26, the defendant presented his certificate of proof of claim to the Liberty Trust Company and requested its treasurer and assistant treasurer to make sure “that . . . [the draft] was not paid. He was assured [by them] that if it came in, it would not be paid.” He was then paid “the amount called for in his certificate of proof of claim with interest.”
The agreed statement of facts shows that the payment of the original draft on April 18 was unknown “to all the persons concerned in the transaction of April 26, 1921, when the Liberty Trust Company paid the defendant the . . . sum of $3,540.83.” It also was agreed that the Liberty Trust Company “paid this item twice . . . innocently, and by mistake or inadvertence.” When the defendant was paid he signed an agreement stating the check had been “either lost or destroyed” and guaranteeing the trust company against any loss “to which you may be put . . . meaning to protect you in case said check should be presented for payment.” This suit in equity is to recover the payment made to the defendant which, it is agreed, was made by mistake.
When the defendant presented his certificate of proof of claim to the Liberty Trust Company and was paid the sum of $3,540.83, he did not know and the trust company did not know that the draft had already been paid. He supposed the draft had been lost, and apparently all the parties believed this to be so. If the Fidelity Trust Company had con-
The facts in Beecher v. Cosmopolitan Trust Co. 239 Mass. 48, are different from the facts in the present case. In the Beecher case the bank’s undertaking with the plaintiff was to have funds in Roumania to meet the order it had sold the plaintiff, and the failure to perform by the bank gave rise to an action of contract by the plaintiff. In the case at bar the indorsements of the payee and all intervening parties were on the draft, and when the draft was finally paid, it bore the indorsement of the Second National Bank. It does not appear that the payee was not paid when he indorsed the draft; and as the draft was finally paid by the Liberty Trust Company after it had taken over the assets and assumed the liabilities of the Fidelity Trust Company, the contract with the defendant was not broken, and the Beecher case is not applicable.
After the payment of the draft, the defendant had no right to recover the money he had paid for it, and we need not consider what rights he might have had before payment was actually made; see American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249, 253, where the purchaser of the dishonored draft was a party to it and was itself the payee.
The defendant’s claim was allowed and he received a certificate of proof of claim before the draft was presented to the Liberty Trust Company and paid by it. But this fact does not help the defendant under the circumstance here disclosed. It does not appear that any decree of the court was entered with reference to this claim. As was said in Commissioner of Banks v. Commonwealth-Atlantic National
As the plaintiff can recover for the reasons stated, we have not thought it necessary to consider the effect of the defendant’s agreement of April 26, guaranteeing the plaintiff against loss.
The decree is to be reversed, and a decree entered for the plaintiff.
Ordered accordingly.
