Opinion
Docket No. 16, Calendar No. 33,867.
Submitted October 3, 1928.
Decided December 4, 1928.
Error to Wayne; Murphy (Alfred J.), J. Submitted October 3, 1928. (Docket No. 16, Calendar No. 33,867.) Decided December 4, 1928.
Assumpsit by Leo Wasyluk against Andrzej S. Lubienski for money paid defendant to be deposited in a foreign bank. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.
Harry J. Lippman, for appellant.
Anderson, Wilcox, Lacy Lawson ( C.J. Huddleston, of counsel), for appellee.
Plaintiff, a foreign citizen temporarily residing in Detroit, June 19, 1917, gave defendant $1,419 to remit to the Russo-Asiatic Bank in Petrograd. The declaration alleges, and plaintiff testifies, defendant was to obtain a deposit book and deliver it to plaintiff, and that he failed to do so. Suit was commenced November 22, 1923, 6 years, 5 months, and 3 days after plaintiff gave defendant the money to remit. Within a week after delivering the money to defendant, plaintiff started for Russia, arriving there in about three weeks. When he reached Russia the power of the Czar had been overthrown, Kerensky was dictator, and the Bolshevik revolution in progress. Plaintiff went to the Russo-Asiatic Bank in Petrograd and demanded his money. He was told by some one he would be hanged. The testimony does not show he demanded his money of any one in authority. Subsequently he made no effort in Russia to get the money. The Bolshevik revolution was successful. Subsequently the Russo-Asiatic Bank of Petrograd was taken over by the revolutionists and the deposits therein confiscated, though the bank continued in business some time after the plaintiff made demand for his money. There is nothing to show defendant did not remit the money to the Russo-Asiatic Bank as he agreed to do. The contract of defendant was in writing as follows:
"Andrzej S. Lubienski Notaryusz Publiczny 1275-1277 Dubois Ul. Detroit, Mich. No. 13558 Detroit, Mich., Jun. 19, 1917 "Received of: L. Wasyluk, "For: (Foreign Currency) 6000 rouble to be remitted to Russo Asiatic Bank.
"Residence: Petrograd, Russia.
$1419.00 "A.S. LUBIENSKI."
Plaintiff claims that defendant, having moved for a directed verdict at the close of plaintiff's proof, waived his right to have the case considered, after introducing testimony, as of the close of plaintiff's case, citing Denman v. Johnston, 85 Mich. 387; Kelso v. Woodruff, 88 Mich. 299; and Lynch v. Johnson, 109 Mich. 640. The rule laid down by these cases was changed by Act No. 182, Pub. Acts 1899 (3 Comp. Laws 1915, §§ 12628, 12629).
Plaintiff discusses many other assignments of error. They have been considered, but, in view of the disposition of the case, are immaterial. The contract between the parties was deliberately put in writing. It cannot be varied by parol. Plaintiff's cause of action, if any, arose more than six years before the commencement of this suit, and is barred by the statute of limitations.
Judgment affirmed, with costs.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred.