National City Bank v. Pacific Co.

Ingraham, J.: This action was brought to recover the sum of $912.35 expended by the plaintiff at the request of the defendant in transmitting a sum of money from New York to Lima, Peru, by cable. The question in dispute was the amount of .a premium paid by the plaintiff to a London bank for transmitting, the money, amounting to $1,829.06. The defendant paid to the plaintiff the sum of $50,000> the plaintiff claiming that the cost of the transaction, including its commissions, was $50,912.35, which included the disputed charge. The complaint alleges that “ on November 22,1904, the defendant Requested, the plaintiff to transfer by cable to one Di Fomento, at Lima, Peru, the sum of Ten Thousand Peruvian pounds, in Peruvian money, and to effect such'transfer by the following morning; that the plaintiff duly made said transfer through the London City & Midland Bank of London, England, which was a proper method of [14] effecting-the said transfer, 'and paid .the' said bank 'therefor $50,644.48.; that the plaintiff expended $24 for cable messages in connection with the. said transaction, and its. commission amounted to, $243.87, making the total amount laid out and expended, in effecting the said transfer,, including the plaintiff’s commission, $50,912.35, of which the defendant has paid only $50,000, leaving a balance of $912.35.” The answer admits that on November 22, 1904, the -defendant requested the plaintiff to. transfer the money by cable as alleged in' the complaint; that the plaintiff effected the transfer and the payment of 10,000 Peruvian pounds to the said Minister Di Fomento at Lima, Peru, through the London' City and Midland Bank qf London, Eng., and paid "to said London bank therefor $50,644.48; that the plaintiff expended $24 for cable messages in connection with the said transaction, and that the plaintiff’s commission amounted to $243.87, making the total- amount laid out and expended in effecting the said transfer, including the -plaintiff’s commission, $50,912.35; that the defendant has paid to the plaintiff only $50,000; that the sums of $24 for .cable messages, and $48,815.42- were paid- out and expended by the plaintiff at the request of "defendant, and alleges that “ the defendant did not request any part thereof to be paid to said London bank, the plaintiff having itself chosen said London bank as a medium for effecting said transfer to said Minister Di Fomento, and in effecting said transfer having-paid out $1,829.06 impropeily and without-request frozn the defendant.” The answer further alleges that the plaintiff “.laid out and expended. $1,829.06 without the request of and without benefit to the defendant.”- The answer then alleges payznent, and these facts are again alleged by Way of counterclaim,, the defendant seeking to recover , frozn the plaintiff the balance of. $5Q,000 paid by defendant to - the plaintiff after deducting the amount of the plaintiff’s account, less the álleged improper charge of $1,829.-06. The answez-, therefore, expressly admits the employment of -the plaintiff by the defendant ,to-effect this' tz-ansfer of znoziey to Peru, azzd that izi so effécthig this transfer- the plaintiff actually paid out this sum of $1,829.06 ; then alleges that" this sum of $1,829.06 paid out by the plain tiff "to the correspondent to effect the tz'ansfer of [15] the money to Peru was paid without the request of and was, therefore, not binding upon the defendant. The plaintiff called the head of its foreign exchange department as a witness, and upon cross-examination by the defendant he testified that the president of the defendant called upon him on the 22d of ¡November, 1904; that he told defendant’s president “ about a premium or other charge having to be paid in London ” in making this transmission ; that the defendant would probably have to pay a premium on it, seeing that a specific kind of currency was required to be paid into the Ministry of Foreign Affairs in Lima and had to be paid the next morning; that a premium would have to be paid in London; that there was a “ decided difference between a transfer ■ by cable and any other transfer; on a transfer by cable the money is paid here in ¡New York to-day and probably paid out as fast as the cable can reach the other point in Peru.” He testified that this transfer was ordered in the afternoon and was to be paid out at Lima the next morning before twelve o’clock; that if the transfer had been made by mail it would have taken from four to five weeks before the concern in Peru would have got the money, and “ the difference between the telegraphic transfer and the mail remittance is taken into account as the premium. The premium is computed on the basis of the shipment of that amount of money in actual money, freight, insurance, loss in time while in transit,” etc.; that a cable transfer is simply transferring the credit from one to the other, but that all has to be paid for; that the president of the defendant instructed the plaintiff to go ahead and make the transfer. The defendant then, offered in evidence a letter of the witness to the defendant’s president which called the defendant’s president’s attention to the fact that defendant might have to pay*a premium, and that defendant’s president informed the writer of the letter that it was thoroughly understood by the defendant and to go ahead with the matter. This was on the cross-examination of the plaintiff’s witness, the defendant making him its witness for this purpose. The defendant having introduced a letter of the plaintiff’s agent to the defendant’s president, then offered in evidence the reply of its president which contained his account of the agreement. This was objected to by the plaintiff, which objection was overruled and the plaintiff excepted. [16] It is quite clear that this letter was incompetent. • It was not answered nor did it seem to call for an answer; it contradicted the terms of the agreement as stated in the letter introduced by the defendant under which the plaintiff acted, and could have been of no relevancy except as a declaration of the defendant’s president as to his understanding of the agreement. If the plaintiff had introduced this letter to the defendant in evidence, then, of course, the defendant would have been entitled to prove the reply; but the defendant having proved plaintiff’s agent’s letter against the objection of the plaintiff, could not make the reply competent as against the plaintiff. The admission of this letter being error, the court below was justified in setting aside the verdict. Under the pleadings, however, I think there was no question for the jury and that the plaintiff was entitled to the direction of a verdict. The complaint alleges that on the 22d of November, 1904,. the defendant requested the plaintiff to transfer by cable to Peru the sum of 10,000 Peruvian pounds. The answer admits this allegation. The complaint then alleges that the plaintiff made the said transfer through the London City and Midland Bank of London and paid the said bank therefor $50,644.48-. That allegation is also admitted in the answer, coupled with an allegation that the plaintiff laid out and expended $1,829.06 without the request of and without benefit to the defendant. ’ The plaintiff thus having alleged and the defendant admitted the request to make the remittance, and the plaintiff having actually made the remittance- as requested and paid therefor the cost of making such remittance, the plaintiff was entitled to be repaid the cost of- making this transfer unless there- was evidence of bad faith. The plaintiff was employed to effect such transfer of money and actually and in good faith paid the necessary disbursements to accomplish the transfer, and it is, therefore, entitled to repayment for the disbursements incurred. There is no allegation in the answer that this disbursement was not a necessary and proper one for the purpose of remitting the money to Peru: The allégation in the answer that the payment was not made at the request of and for the benefit of the defendant is the allegation of a conclusion and does not present an issue as to the good faith of the plaintiff in making, the payment to the London bank as -the charge incurred by it for making the remittance. [17] The testimony of the plaintiff’s employee that he told the defendant that it would probably have to pay a premium for remitting this sum and that the remittance would be made through the plaintiff’s London correspondents, which was not contradicted by the defendant’s president in his testimony, justified the plaintiff in making the transfer through London and made the defendant liable for the necessary charges paid by the plaintiff in London for transmitting this money to Peru. At the end of all the testimony the plaintiff moved for the direction of a verdict in its favor on the ground that the allegations of the complaint having been admitted and proved without controversy, the plaintiff was entitled to a verdict. This motion was denied and the plaintiff excepted. I think this motion should have been granted, and for that reason the court was justified in setting aside the verdict. There was clearly no question here to be submitted to the jury. The .court seems to have left a question of law for the jury’s determination, who found a verdict for the defendant which was not justified by the pleadings or the evidence. It follows that the order appealed from should be affirmed, with costs. Patterson, P. J., Clarke and Scott, JJ., concurred ; Laughlin, J., dissented.