Buckman v. American Express Co. ( 1928 )

Braley, J.

This is an action of contract to recover nine separate sums paid to the defendant for transmission to Russia for the account of individuals with whom the plaintiff was dealing in the course of his business of selling foreign exchange. Count 19 of the declaration has been waived. The odd counts of the remaining eighteen are for breach of contract and the even counts are for money had and received. The defendant’s exceptions to the admission of evidence not having been argued are treated as waived.

The jury on the testimony would have been warranted in finding the following facts: Between September 14, 1917, and December 13,1917, the plaintiff received from nine customers orders to deposit rubles to their several accounts in the Imperial Russian Savings Bank in Petrograd, Russia. Each of these nine applications was delivered to the defendant by the plaintiff with sufficient money in the currency of the United States to make the deposit in rubles at the rate of exchange current at that time, and to pay the defendant its profits, charges and expenses of returning the bank books. The defendant had its own office in Petrograd to which the applications were forwarded. The defendant’s office in Petrograd, however, never deposited the money in the Imperial Russian Savings Bank because the changes brought about by the Russian revolution made this impossible. One Rehburg, called as a witness by the plaintiff, testified in regard to banks in Russia after the revolution as follows: “They [the Bolshevik Government] seized them; the banks were all closed from the first days of the revolution; they wouldn’t belong to any private companies; they would belong to all the people, to the government, particularly the Soviet Government .... Later there was another decree that the banks would be reopened again for the people but not as private banks, — as banks of the government; as branches of the Soviet Government Bank . . . .” The plaintiff on several occasions requested the defendant to return the money paid to it but no money has been refunded to the plaintiff or his customers. The reason why the defendant did not perform the contract was based on an excusable impossibility caused by the revolution. But this does not prevent the plaintiff from rescinding the contract and recovering back the payments made. Cochrane v. Forbes, 257 Mass. 135, 149, 150, 152, and cases cited.

In view of the fact that the jury could find that the defendant had not carried out its obligation-to make deposits through its Petrograd office in the Imperial Savings Bank in the names of the various customers of the plaintiff, the contract was executory and not completed as in American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249, 252, 253, and Beecher v. Cosmopolitan Trust Co. 239 Mass. 48. In the case at bar the consideration has failed. Gage v. Boston National Bank, 257 Mass. 449, 453. If, as the jury could find, the defendant made no deposits in the Russian bank, it has suffered no financial loss which should be shared by the plaintiff.

It follows that in accordance with the stipulation of the parties judgment is to be entered for the plaintiff in the sum of $3,477.25 with interest from the date of the writ.

So ordered.