Mondello v. Hanover Trust Co.

Crosby, J. On August 8, 1919, the plaintiff and defendant entered into a written agreement by which the plaintiff was to purchase and the defendant to sell fifty thousand Italian lire for the sum of $5,662.51. At that time the plaintiff paid $1,970 on account; the balance was to be paid on or before December 31, 1919, with interest at six per cent from August 8,1919; and the defendant agreed to pay three per cent interest in lire on the fifty thousand lire from the same date. On September 18, 1919, the plaintiff and defendant entered into another written agreement for the purchase and sale of seventy-five thousand lire for [566] the sum of $7,470.12. At that time the plaintiff paid $3,085.86 on account; the balance was to be paid on or before March 15,1920, with interest at six per cent from September 18, 1919; and the defendant agreed to pay three per cent interest in lire on the seventy-five thousand lire from the same date. The plaintiff also paid $121.71 interest on these contracts. The declaration alleges that the defendant neglected and refused to carry out the contracts "thereby making performance on the part of the plaintiff impossible.” He seeks to recover the sums so paid, amounting to $5,177.57. On August 11, 1920, the commissioner of banks, acting under authority of St. 1910, c. 399, now G. L. c. 167, § 22, took possession of the property and business of the defendant company. Thereafter the plaintiff filed a proof of claim with the commissioner for $5,055.86, which was rejected, and this action is brought to establish his claim. It is the contention of the defendant that it has at all times been ready and willing to perform its part of the contracts and deliver to the plaintiff the lire, but that the plaintiff has neglected to pay or to offer to pay for the same in accordance with the contracts. At the close of the evidence, the defendant moved that a verdict be directed in its favor on the plaintiff’s declaration, and on its declaration in set-off for the balance of the purchase price of the lire with interest in accordance with the contracts. The motion was denied subject to the defendant’s exception. The defendant also excepted to the refusal of the trial judge to give certain requests for rulings and to parts of the instructions to the jury. Important questions which lie at the foundation of the plaintiff’s claim are, whether he demanded of the defendant the delivery of the lire and made a tender of the amount due, which was refused by the defendant, and whether, if no such tender was made, it was unnecessary to make it by reason of statements and conduct of one Nobile, an agent of the trust company. The entire evidence relating to the matter of tender is contained in the testimony of the plaintiff. He testified that on October 2, or 3,1919, he went to the defendant’s bank and [567] had the following conversation with Nobile: “I asked Mr. Nobile if he was ready to deliver those liras that I have contracted for with them because I have already the cash to pay for them. Mr. Nobile asked me, he says ‘Why don’t you know we don’t buy those liras for you?’ I said, ‘"Where are the liras that were bought for me? ’ — Q. What did he tell you? A. He told me it wasn’t necessary to buy the liras for me. — Q. And what did you say? A. I said, ‘Why do you pay for, why do you charge me some interest if you don’t buy them?’ — Q. Anything further he said? A. He said that is his business.” To constitute a valid tender the money must be actually produced and offered to the person who is entitled to receive it. It should be shown to the person to whom it is tendered. There must be an actual production of the money unless such production be dispensed with by the declaration of the party to whom it is due that he will not receive it, or by some equivalent declaration or act. A mere offer to pay or a statement that the party has the money and is ready and willing to pay, without actual production of it, is not sufficient to constitute a valid tender. The rule so stated is recognized and adopted by this court and prevails in many other jurisdictions. Breed v. Hurd, 6 Pick. 356. Folsom v. Barrett, 180 Mass. 439, 442. Peugh v. Davis, 113 U. S. 542, 545. Scott v. Franklin, 15 East, 428, 438. Sargent v. Graham, 5 N. H. 440. Lewis v. Mott, 36 N. Y. 395. Eddy v. Davis, 116 N. Y. 247. Brown v. Gilmore, 8 Maine, 107. Holt v. Brown & Co. 63 Iowa, 319. Chase v. Welsh, 45 Mich. 345. Potter v. Thompson, 10 R. I. 1. See also cases cited in 22 Am. Dec. 223, 224, 225, note. The reply to the plaintiff, made by Nobile, that it was not necessary to buy the lire for him, could not rightly be construed as a statement that the defendant was unable to deliver them, nor as a refusal to do so, and thereby excuse the plaintiff from making a tender and entitle him to their delivery on payment of the amount due. The undisputed evidence showed that the defendant maintained a deposit of many thousand lire in the Crédito Italiano at Genoa, Italy, at all times between the date when the first contract [568] was made with the plaintiff and the time when the commissioner took possession of the trust company. Besides, there was no evidence to show that the defendant did not have in its bank, at the time when the conversation between the plaintiff and Nobile took place, sufficient lire to deliver to the plaintiff on payment of the balance due under the contracts. The manager of the foreign department of the trust company, called by the plaintiff, testified that at all times from August 8, 1919, to August 11, 1920, when the bank commissioner took possession, it owned or had to its credit sufficient lire to fulfil the plaintiff’s contracts of August 8 and September 18,1919; and there was no evidence to the contrary. The cases cited by the plaintiff which hold that if the person to whom money is due evades a tender, or absolutely refuses to accept money due, a tender is deemed to have been waived, are distinguishable in their facts from the case at bar. Tasker v. Bartlett, 5 Cush. 359. Schayer v. Commonwealth Loan Co. 163 Mass. 322. Gilman v. Cary, 198 Mass. 318. The plaintiff testified that in June, 1920, he bought from the defendant forty thousand lire for which he paid cash and received a draft on Messina, Italy; that in July following he bought from the defendant seven thousand lire for which he also paid cash and received a draft therefor; that these transactions had nothing to do with the contracts out of which this action arises. He further testified that he bought lire from the defendant on other occasions, including twenty-five thousand on August 8,1919, which he afterwards paid for. One Merrill, an official of the defendant, testified that in June, 1920, the plaintiff was told that he could not have lire until he made a payment on the balance due on his contracts; that the plaintiff then paid in cash $2,325 and thereafter paid $500; that the two sums were credited on the contract for seventy-five thousand lire; that at the plaintiff’s request, the defendant cabled forty thousand lire to Messina, and afterwards cabled seven thousand more to the same place; that both of these amounts were sent on account of the contract of September 18, 1919. [569] This witness further testified that, if the payments above referred to (made in June, 1920,) were not made on the contracts, as contended by the plaintiff, but were cash transactions, the plaintiff owes the defendant $1,938.47. In view of Merrill’s admission that the plaintiff owed the defendant but $1,463.54 when the commissioner took possession, if the defendant is entitled to recover on its declaration in set-off, the amount it can recover is limited to that sum with interest, in accordance with the terms of the contracts. As there was no evidence to warrant a finding that the plaintiff made a valid tender of the amount due, nor that a tender was waived by the defendant, the court should have allowed the defendant’s motion for a directed verdict in its favor on the declaration, and ordered a verdict for the trust company on the declaration in set-off, in the sum of $1,463.54 with interest at six per cent, in accordance with the contract. Since the motion for a directed verdict should have been allowed, the defendant’s other exceptions need not be considered. Judgment for the defendant in the sum of $1,463.54 with interest and costs.