176 Wis. 314 | Wis. | 1922
The following opinion was hied January 10, 1922:
There is no claim on the part of the defendant that the money was delivered to plaintiff’s mother at Simferopol, Russia, within ten days from the date of the remittance. The' usual course of remittances of this nature was as follows: the remittance would go forward from Milwaukee to the office of the express company at New York by mail; upon its receipt the express company would buy 4,000 rubles on the market; it would then telegraph its correspondent at Petrograd to deposit in the Russian mails a remittance for the 4,000 rubles, addressed to the remittee. The evidence discloses that the remittance was not deposited in the Russian postoffice until August 1st, so that it appears conclusively that the remittance could not have reached the remittee within ten days from the date when the money was paid to the express company. This conceded fact, together with the special verdict, establish that the express company agreed to transmit 4,000 rubles to plaintiff’s mother at Simferopol, Russia, within ten days from June 29, 1917; that it agreed to pay back $1,000 in American money to plaintiff in case it did not deliver the 4,000 rubles as agreed; that it failed to make such delivery, and that it has failed to return the money, which is also ■a conceded fact in the case. If the verdict of the jury is supported by competent evidence, the plaintiff’s right to a recovery is therefore established.
The only written contract between the parties consists of the receipt which was issued by the express company to the plaintiff, set forth in the statement of facts. That
The plaintiff’s brother testified that he and plaintiff lived together in Milwaukee; that they desired to send 4,000 rubles to their parents in Russia; that on the 20th day of June the witness and the plaintiff went to the office of the American Express Company and talked with the agent about sending money to Russia; “they told him they got a letter that their parents want money by the 14th of July; they told him that the money had to be there on the 14th of July; the agent told them he would let them know in a couple of days.” Witness again visited the express company on the 29th of June and “told him they need money on the 14th of July, and told him, can you send money to Simferopol, Russia, on the 14th of July and the agent told him that they would deliver the money in Simferopol in from three to ten days, and that he would have a telegram in Milwaukee showing that the money had been so delivered.” The agent told the witness that he would show him a telegram that they had .received the money within ten days or he would pay back the $1,000.
One B. F. Schoenkerman was a branch agent in Milwaukee of the American Express Company in the matter of handling domestic money orders. He also handled foreign remittances, but not as an agent of the express company. With reference to that line of business he represented only his customer. He discovered that the plaintiff wanted to send this money to Russia, and called on him on the 29th of June and solicited his business, with the re-
This constituted a continuous negotiation culminating in the undertaking of the express company to make the remittance within from three to ten days, and to pay back the money if the express company failed to deliver according to its agreement. It is true that there was nothing said at the time of the actual delivery of the money with reference to the time within which the remittance was to be delivered. However, the inference that the money was delivered to and received by the express company pursuant to the promise and agreement made by the agent on the day previous is entirely justified. This was the very remittance to which the prior negotiations related, and it seems clear that the contract between the parties is to be determined in the light of the negotiations which took place on the 20th, the 28th, and 29th of June.
It is true that the testimony on behalf of the plaintiff is flatly contradicted by the agent of the express company, and we are asked to set aside the verdict of the jury on the ground that the evidence upon which it rests is incredible.
Appellant assigns as error the refusal of the trial court to submit to the jury the question of whether the remittance was in fact delivered to and retained by the remittee, even though not delivered within the time stipulated. It is true that it was incumbent on the plaintiff to prove this fact. However, whether the money was so delivered was peculiarly within the knowledge of the company. Under the circumstances, slight proof of this fact on the part of the plaintiff should be sufficient to relieve him of the burden. The express company did not pretend, throughout the trial, that it made delivery of the remittance or that it had been received by the plaintiff’s mother, and, in fact, it supplied proof that the remittance had not been so received.
From this evidence it appears that the money was not delivered within ten days from date of remittance; that when attempted to be delivered the remittee refused it because it arrived too late.'The express company does not deny that it still has the money. It does not deny that some restitution'should be made to the plaintiff. Its contention is that plaintiff is not entitled to- the full $1,000, but only to the depreciated value of the 4,000 rubles. We must therefore hold that under the verdict establishing the agreement of the express company and its failure to perform the same the plaintiff is entitled to recover the full amount paid.
While we have not discussed in detail appellant’s numerous, assignments of error, the foregoing discussion fully disposes of those which in our view of the case are in anywise material. The verdict of the jury has sufficient support in the evidence, and the judgment rendered thereon cannot be disturbed.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on March 14, 1922.