Weiss v. Housman , 204 A.D. 152 ( 1923 )


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  • Van Kirk, J.:

    The plaintiff was formerly a subject of Austria, but is now a naturalized citizen of this country. He applied to the defendants to purchase from them certain Japanese bonds. The defendants owned Japanese bonds which were on deposit with the Dresdner Bank of Berlin, Germany, which bonds the defendants could sell at a lower price on account of the war conditions and exchange, *153but could not physically deliver. The terms of sale were agreed upon; the plaintiff gave to the defendants his check for $7,450.08,

    and they gave to him a receipt as follows:

    “ May 1916
    “ Received from Mr. Harry Weiss, 90 Congress Street, Troy, N. Y., $7,450.08, in payment for £2000 4| Japanese Bonds Second Series German-stamped (73f net and accrued interest) the bonds to be deposited at the Dresdner Bank, Berlin, which institution will hold said bonds, free of charge, subject to the order of Mr. Weiss, and thus under his sole control. We further agree to furnish a receipt of the Dresdner Bank, setting forth the above, within a reasonable time. (Signed) A. M. HOUSMAN.”

    The plaintiff accepted this receipt, stating the terms of the contract, and had no further communication with the defendants until November 6, 1916, when he wrote inquiring why he had not received notice from the Dresdner Bank. On November eighth the defendants replied that plaintiff’s instructions were carried out by defendants and that they had received a wireless advice of the purchase from the Dresdner Bank; and on November 10, 1916, defendants wrote another letter to plaintiff informing him that they had received communication from the Dresdner Bank which acknowledged receipt of defendants’ instructions and confirmed that they are holding for plaintiff .£2,000 four and one-half per cent Japanese bonds; also inclosing to plaintiff a copy of the receipt or acknowledgment which the defendants had from the Dresdner Bank, as follows: "

    " BerliN, 0dober 6> 1916.
    Messrs. A. A. Housman & Co., New York:
    “ Dear Sirs.-- In reply to your letter of May 10th which reached us via Amsterdam (copy) we shall hold the £2000 — /— 4|% Japanese Bonds kept in deposit on your behalf at the disposal of Mr. Harry Weiss, 90 Congress Street, Troy, N. Y.”

    This seems to have been entirely, satisfactory to the plaintiff; he never demanded the original receipt. Not until September, 1918, substantially two years later (at which time Germany’s acknowledgment of defeat was generally anticipated), did he make any further demands from the defendants. The defendants had fully carried out the contract of purchase and sale which they had made with the plaintiff. There was nothing further which the defendants had contracted to do. Their direction to their correspondent, the Dresdner Bank, the acknowledgment by the bank accepting the order or direction, and its compliance therewith by placing these bonds subject to the order of the plaintiff, was a delivery of the bonds to the plaintiff in accordance with the agreement and plain*154tiff so accepted it. The bonds thereupon became the property of the plaintiff. Thereafter the Dresdner Bank was not, as to these bonds, the agent or bailee of the defendants, but was the agent and bailee of plaintiff, who, at any time, could procure these bonds; at no time thereafter were the bonds subject to the order or control of, nor were they the property of, the defendants.

    Reference is made to the receipt above quoted, dated October 6, 1916, which the defendants had from the Dresdner Bank, as indicating that the delivery was not complete and that the bonds would continue in deposit on defendants’ behalf. The particular expression is, We shall hold the £2000 4|% Japanese bonds kept in deposit on your behalf at the disposal of Mr. Harry Weiss.” The words kept in deposit on your behalf ” do not express the intent to keep them in deposit on behalf of the defendants; these words are merely descriptive of the Japanese bonds which the Dresdner Bank will hold at the disposal of Mr. Harry Weiss, and means the same as if the words had been used, “ heretofore kept in deposit on your behalf.”

    Some later occurrences are urged by appellants. They say that, at some time during the war and in the year 1918, some process of a court in Germany was issued against these defendants, and twenty-one of these bonds were seized and sold, whereby they suffered. But this seizure was wrongful; it was a seizure for which these defendants were in no wise responsible and which they could not have avoided. Also appellants say that subsequently the defendants assisted the plaintiff to secure possession of his bonds and finally he did procure seventy-nine of them; and that the defendants offered to make some settlement of the dispute between the plaintiff and themselves, which settlement was never completed. But neither of these voluntary acts cast a liability upon defendants.

    The court directed a verdict for the value of these twenty-one bonds, with interest. It also appears that certain coupons on the seventy-nine bonds, which matured after May, 1916, were cut therefrom by the Dresdner Bank. This was done without any authority from the defendants, without their knowledge, and whether or not the Dresdner Bank, as plaintiff’s bailee of these bonds, was justified in cutting off and collecting upon the coupons, no responsibility, therefor, we think, rested upon these defendants. The court, however, has directed a verdict in favor of the plaintiff for the value of these coupons, with interest.

    At the .end of the evidence defendants moved for the direction of a verdict in their favor. This motion the court denied, but directed a verdict in favor of plaintiff. We think the defendants’ motion should have been granted.

    *155The judgment should, therefore, be reversed, with costs to the appellants, and judgment had in favor of the defendants, with costs in the trial court.

    H. T. Kellogg, Acting P. J., and Kiley, J., concur; Hinman, J., dissents, with an opinion in which Hasbrouck, J., concurs.

Document Info

Citation Numbers: 204 A.D. 152

Judges: Hinman, Kirk

Filed Date: 1/10/1923

Precedential Status: Precedential

Modified Date: 1/12/2023