(217 App. Div. 386) (217 N.Y.S.) PICHLER v. GUINNESS et al. (Supreme Court, Appellate Division, First Department. July 6, 1926.) Banks and banking 1881⁄2-Purchaser from defendants of wireless transfer of money to German bank, to be credited to certain estate, held not entitled to recover of defendants, where money was delivered to German bank, but because of wireless company's mistake was not credited to proper account. Defendants, who agreed with plaintiff to procure payment by wireless of money to German bank for account of certain estate, under agreement exempting them from liability for mistake in transmitting message, held not liable for failure to perform contract, where money was transferred to German bank, but because of wireless company's mistake in transmitting message was not credited to proper account. Appeal from Supreme Court, New York County. Action by C. Edward Pichler against Benjamin Guinness and others, copartners doing business under the firm name and style of Ladenburg, Thalmann & Co. From a judgment for plaintiff on a directed verdict for plaintiff on a trial by the court without a jury, under a stipulation that jury trial should be waived and that at the close of the case the court should direct a verdict as if on concurrent motions for such direction, defendants appeal. Judgment reversed, verdict directed for defendants, and judgment ordered thereon. Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ. Van Vorst, Siegel & Smith, of New York City (Arthur B. Brenner, of New York City, of counsel, and Edwin Kessler, Jr., of New York City, on the brief), for appellants. Parmly, Stetson & Woodward, of New York City (William L. Woodward, of New York City, of counsel), for respondent. DOWLING, J. The complaint herein alleges that on or about December 16, 1916, the defendants agreed with the plaintiff to procure the payment by wireless telegraph of 20,000 marks, German currency, to the Frankfurter Bank, for the account and to the credit of the Pichler estate, referred to in the agreement as "Pichler Nachlass"; that the plaintiff on that date paid the sum of $3,559.01 to the defendants in compliance with the terms of the agreement; that the defendants failed and neglected to carry out their contract and to procure the payment as agreed at any time prior to the 19th day of September, 1919, when plaintiff demanded the return of his money. The answer denies the allegations of the complaint, except that the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes defendants admit the receipt of $3,559.01 from the plaintiff on or about December 18, 1916, which sum was paid by the plaintiff in respect of an order for a wireless transfer, which is set forth in full in the answer, and which specifically exempts the defendants and their correspondents from liability "for any loss or damage in consequence of any delay or mistake in transmitting this message, or for any other cause beyond their control." The answer further alleges that the defendants duly sent a proper wireless message for the purpose of effecting the transfer, but that the message was received in a mutilated. condition; that, due to a mistake in transmitting the message, beyond the control of the defendants, the word "Wechsler" had been substituted for the word "Pichler," and that the disturbance of the mails, resulting from the European War, prevented the correction of the mistake until after the plaintiff's demand for the return of his money. At the opening of the trial defendants' counsel asked leave to amend the answer, so as to state further: "That after the time covered in the answer, and before the commencement of the action, the plaintiff and the intended beneficiary exercised some dominion over the account, and gave certain directions with respect to it." Defendants offered evidence of such assumption of dominion on the part of the plaintiff and the intended beneficiary, and a motion to conform the pleadings to the proof with respect to this was granted at the close of the trial. The facts established upon the trial are as follows: On December 18, 1916, at 25 Broad street, New York City, the plaintiff and the defendants executed and exchanged an order for a wireless transfer and a receipted bill for the price thereof, as follows: Order: "Ladenburg, Thalmann & Co., 25 Broad Street, by wireless "New York, Dec. 18, 1916. "Transfer by able to Frankfurter Bank, Frankfurtmain, on account of Pichler Nachlass: Amount M 20,000 Rate 71 Cost of message "Through: Deutsche Bk, Berlin. $3,550 9.01 "In ordering this cable transfer it is fully understood and agreed by the purchaser that no liability shall attach to Messrs. Ladenburg, Thalmann & Co., nor to their correspondents, for any loss or damage in consequence of any delay or mistake in transmitting this message or for any other cause beyond their control. "Purchaser: Receipt: C. Edward Pichler." "25 Broad Street, New York, Dec. 18, 1916. "Cable transfers are to be paid for on the day they are ordered. In making this cable transfer it is fully understood and agreed by the purchaser that no liability shall attach to us, nor to our correspondents, for any (217 N.Y.S.) loss or damage in consequence of any delay or mistake in transmitting this message, or for any other cause beyond our control. "Mr. C. Edward Pichler, to Ladenburg, Thalmann & Co., Dr. wireless M 20,000 eable transfer to Frankfurter Bank, Frankfurt "Through: Deutsche Bank, Berlin. "Received payment Dec. 18, 1916. $3,550.00 9.01 $3,559.01 "Ladenburg, Thalmann & Co." In compliance with the contract between plaintiff and defendants, the latter on December 18, 1916, sent the following wireless message to the Deutsche Bank at Berlin: 191 "Cablegram: No. 22 Time CO Check 26 Via Send the following cablegram 'via commercial' subject to the terms and conditions printed on the back hereof which are agreed to: "Dec. 18, 1916. "Radio via Tuckerton deutschbank berlin december eighteenth twooneeight pay frankfurterbank frankfurtmain twenty thousand marks account pichler nachlass pay elise H. Lampe Freidrich Schneider Strasse fourteen dessauanhalt fifteenhundred ninety three marks "1248 PDG Ladenburg." On December 29, 1916, a similar agreement between the same parties for the transfer of the further sum of 14,707.30 marks was made, the agreement being to cause the marks to be paid to the Frankfurter Bank through the house of E. Ladenburg at Frankfurt, instead of the Deutsche Bank at Berlin. In February, 1917, plaintiff was advised that the transfer of the marks ordered on December 29, 1916, had been received by the beneficiaries abroad. In response to an inquiry made on April 9, 1917, as to what had happened to the transfer of the 20,000 marks, the defendants wrote plaintiff that, while they had no written confirmation from their correspondents that the two payments of December 18 and December 29 had been effected, from their experience they knew that all wireless transfers which they sent to their correspondents were received, and they had no reason to believe that this case was an exception. On June 4, 1919, plaintiff wrote defendants that the first payment did not seem to have reached its destination, while the second transfer did, and that he would like the benefit of the difference in exchange, if the transfer was not made at the time he paid in the money. Defendant replied, on June 5, 1919, that as soon as communication with their German correspondents was permitted they would take up the matter with the plaintiff. On September 19, 1919, plaintiff by letter made demand on defendants for the return of the money paid, $3, 559.01, with interest from December 18, 1916. In reply to this, under date of October 16, 1919, defendants wrote that they had no specific advices as to whether the sum of 20,000 marks transferred by wireless was received, and on October 17, 1919, defendants wrote their correspondent, the Deutsche Bank of Berlin, to cancel the order for transfer by wireless of 20,000 marks to Frankfurter Bank for the account of the Pichler estate. On December 5, 1919, the defendants received in the mail from Deutsche Bank in Berlin the following statement of their account with said Deutsche Bank, dated December 28, 1916, containing an item showing the payment to the Frankfurter Bank, Frankfurt a/M of 20,000 marks, as directed by defendants on December 18, 1916: "Berlin, the 28/12 1916. W. 8. "Messrs. Ladenburg, Thalmann & Co., New York, in account with Deutsche Bank, Berlin. Transfer of Messrs. Speyer & Company, New York Your cable Dec. 23d, transfer to the credit of Guaranty Trust Co., Your cable Dec. 19th, payment to Frankfurter Bank, Frankfurt.... 10,000.- 28/12 Your cable Dec. 18th: Payments: Frankfurter Bank, Frankfurt a/M .. 20,000.- 27/12 1,593.- 66 27/12 400,000. 400,000.- 27/12 10,000.- 27/12 On the same day (December 5, 1919) defendants received the following letter from the Deutsche Bank: "Deutsche Bank, American Department, "Communication to Messrs. Ladenburg, Thalmann & Co., New York. "Berlin, January 16, 1917. "W. S. "Re: Your Cable 'Pay Frankfurter Bank, Frankfurt a/M M. 20,000.— account Wechsler Nachlass.' (217 N.Y.S.) "Our Frankfurt branch writes us in the above mentioned matter as follows: You order us to make payment of M. 20,000- to the Frankfurter Bank, here, for account of Wechsler Nachlass, by order of Ladenburg, Thalmann & Co., New York, which order we have executed accordingly. To-day said bank informs us that the beneficiaries are not known to them and asks for more explicit details.' "We ask you to please let us have your news as soon as possible and remain, "Yours very truly, Deutsche Bank." On January 12, 1920 defendants wrote plaintiff, informing him of the nature of the mistake that had been made in the transmission of the wireless message, by which "Pichler Nachlass" had been changed by the radio company to "Wechsler Nachlass," and advised plaintiff that they had that day cabled their correspondents "asking them to inform the Frankfurter Bank to credit these funds to Pichler Nachlass, which will thus put the matter in order," and which cablegram defendants did in fact send as represented. Plaintiff's counsel under date of January 13, 1920, wrote defendants that the adjustment of the matter proposed in defendants' letter of January 12, 1920, was not at all satisfactory, or one that he could ratify and approve, and on January 21, 1920, plaintiff wrote defendants, ratifying and confirming the statement of his counsel, and made a second demand in this letter for the return of his money, with interest. Meantime, on January 16, 1920, defendants had received another letter from Deutsche Bank, as follows: "Deutsche Bank. "American Department Du/N. "[Stamp: Received 8 A. M. Jan. 16, '20.] "Berlin, December 18, 1919. "Messrs. Ladenburg, Thalmann & Co., New York. "Re: Radio order for the payment of M 20,000.- to Frankfurter Bank, Frankfurt, in favor of Eduard Pichler Nachlass. "We wish to add thereto that the execution at that time was caused by the mutilated transmission of the radio message. We ask you therefore to kindty inform us if we may authorize the Frankfurter Bank to transfer the amount now to the account of Pichler Nachlass. "Very truly yours, Deutsche Bank." On July 26, 1920, the Deutsche Bank wrote defendants that it had instructed the Frankfurter Bank at Frankfurt to use the 20,000 marks for the account of the Pichler Nachlass, instead of Wechsler Nachlass. On August 23, 1920, defendants received from Frankfurter Bank a letter, dated August 3, 1920, in the German language, referring to the transaction which is the subject-matter of this suit, which letter, in part, read as follows: "We ask you kindly to inform us if the amount is intended for the account of Eduard Pichler Nachlass, or give us further more explicit information." |