Bloom v. Nutile-Shapiro Co.

Crosby, J. This action, brought in the Municipal Court of the City "of Boston, is for the recovery of $700. The declaration is in two counts, the first upon a special contract by which it is alleged that the plaintiff deposited with the defendant $700; that in consideration thereof the defendant agreed to deposit five thousand roubles in a designated bank in Russia and obtain for the plaintiff a bank book, so called; that the defendant delivered to the plaintiff a receipt for the deposit; that the defendant has refused to deliver to the plaintiff a bank book or deposit to the plaintiff’s credit five thousand roubles, and has failed to carry out the contract. The second count is for money had and received by the defendant to the plaintiff’s use. [356] The receipt, dated December 21,1917, is absolute in form, and provides for the transmission of the funds, and that the bank book be sent to America. On the receipt the following also appears, having been placed thereon by means of a rubber stamp: “If money orders cannot be effected, refund will be made at rate of exchange on day returned.” It is the contention of the plaintiff that the foregoing was placed upon the receipt about a year after it was issued to him on an occasion when he called at the defendant’s office and demanded his money. At the argument it was admitted by the defendant that the words stamped on the receipt were not there when delivered. The trial judge found for the plaintiff and reported the case, and the Appellate Division ordered that the report be dismissed. It is the contention of the defendant that the nature of the contract was such that it was required to employ a suitable agent to transmit the funds and secure the bank book, which it did; and that it is not responsible to the plaintiff for the negligence or misfeasance of the agent so employed. It is settled in this Commonwealth that where the nature of the contract in which a bank engages necessitates for its execution the employment of subagents, the assent of the principal is implied. In Fabens v. Mercantile Bank, 23 Pick. 330, it was said at page 332, “It is well settled, that if the acceptor of a bill or promisor of a note, has his residence in another place, it shall be presumed to have been intended and understood between the depositor for collection and the bank, that it was to be transmitted to the place of the residence of the promisor, and the same rule shall then apply, as if on the face of the note, it was payable at that place .... We are therefore of opinion, that the defendants had performed their duty, when they transmitted the note to a solvent bank in good standing, and were not responsible for the misfeasance or negligence of that bank.” The principle so enunciated has been affirmed in subsequent decisions of this court. Dorchester & Milton Bank v. New England Bank, 1 Cush. 177, 186. Warren Bank v. Suffolk Bank, 10 Cush. 582, 585. Lowell Wire Fence Co. v. Sargent, 8 Allen, 189, 191. Murray v. [357] Postal Telegraph-Cable Co. 210 Mass. 188, 194. It does not appear, however, that the rule stated in the cases above referred to is applicable to the case at bar. The report of the trial judge states that “ The material evidence in the case was substantially as follows: ” there is then a recital of evidence offered by the plaintiff and by the defendant, but the only findings of fact made by the court are after such recitals, and are contained in a single paragraph as follows: “ I find that the plaintiff paid the defendant seven hundred dollars ($700) and in consideration thereof the defendant agreed to procure a Russian government bank book showing a deposit of five thousand (5000) roubles and to deliver said book to the plaintiff in this country, and I further find that the defendant has failed to perform its contract.” The judge was not bound to believe any testimony offered by the defendant. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314. He may have been satisfied that the defendant never purchased the roubles from the State Bank, or requested it to forward them to Russia in accordance with the terms of the receipt, and that the defendant retained possession of the $700 and made no attempt to carry out its agreement. The mere recital by the judge of evidence submitted to him falls far short of a finding that he believed it established the facts which it was offered to prove. The fair inference from his finding is that he did not believe that the contention of the defendant had been sustained. It follows that he was not required to make the rulings requested, and that the entry must be Order dismissing report affirmed.