(after stating the facts as above). Upon the foregoing facts three contentions may be made on behalf of the defendant:
(1) That the plaintiff is vested with' no right of action, because of the seizure of the claim in question by the Alien Property Custodian on November 18, 1918.
(2) That the cause of action set forth in the complaint is for the breach of a contract which occurred before the plaintiff was under any disability because of the war; that by reason of section 28 of the New York Civil Practice Act it could not avail itself of any disability caused by the war, inasmuch as such disability did not exist when the right of action accrued, and that the claim was barred by the statute because more than six years had elapsed between the date of the breach and the time the action was brought on February 9,1924.
(3) That, if the plaintiff seeks to recover upon any other theory than for the breach of a contract to establish a credit in Germany, recovery may not be had under the pleadings in the case.
In respect to the contention that the plaintiff has no cause of action by reason of the prior seizure by the Alien Property Custodian, it would seem to be a complete answer that the latter official, by letter to the defendant in October, 1923, expressly disclaimed any interest in the sum of money sought to be recovered herein and said: “A careful examination of our records discloses the fact that this sum was never reported to this office, and was, therefore, not demanded. *677I am. advised that I have, in law, no right, title, and interest in and to these funds at this time, and you, are, therefore, authorized to make settlement with Mr. Kelsey direct.”
The amendment to the Trading with the Enemy Act of March 28, 1918 (50 USCA Appendix § 12), gave the Alien Property Custodian, under such rules and regulations as the President should prescribe, “ * * * power to manage such property and to do any act or things in respect thereof or make any disposition thereof or of any part thereof, by sale or otherwise, and exercise any rights or powers which may be or become appurtenant thereto or to the ownership thereof in like manner as though he were the absolute owner thereof.”
This court broadly construed the powers of the Alien Property Custodian in Sutherland v. Guaranty Trust Co., 11 F.(2d) at page 698, and held that he was authorized “to qualify or limit any * * * demand in such manner and to such extent as he might in any case see fit.” There would, therefore, seem to be no right left in the Alien Property Custodian, if one ever existed.
The contention that the cause of action for breach of a contract to establish a foreign credit is barred by the statute of limitations must fail, because there was no unconditional promise to establish such a credit, and the condition upon which the defendant agreed to establish the credit never happened.
The letter of the plaintiff to the trust company on March 26, 1917, which said: “Please remit to the Aachen & Munich Fire Insurance Company at Aachen, Germany, to-day, by wireless, 250,000 marks at .69 or better, and charge the equivalent against the special foreign account of the company” —m.ueh resembled a draft. It only authorized a final charge if the remittance was made, and the charge was to be made to an account used by the plaintiff for foreign transactions, but involving, like any other bank account, a mere relation of debtor and creditor.
The trust company, on the same date, replied by saying: “In making a cable transfer it is fully understood and agreed that no liability shall attach to us and our corre-, spondents for any loss or damage in consequence of any delay or mistake in transmitting the message, or for any cause beyond our control.”
Thus it appears that the defendant carefully guarded itself against any absolute liability, and undertook in substance merely to make a remittance if no cause beyond its control intervened. To be sure, it did charge the plaintiff's account on delivering the cable; but that debit was a: mere matter of bookkeeping, and did not alter the fact that the war cut off communication by cable, and the condition of free communication upon which the obligation to make the transfer rested never existed. In such circumstances, while the debit of $43,137.72, being a mere temporary and tentative entry, should as a matter of bookkeeping have been reversed when the trust company learned that no transfer had been made, there was never in fact a valid charge, and the account was essentially asi though nothing had taken place. After the trust company had failed through stoppage of its cables to make the transfer, the plaintiff was in the position of an ordinary depositor, and on learning for the first time in 1922 of the failure to establish the credit, its manager wrote to the trust company that the plaintiff wished no remittances to be made, and said: “As the order to effect the transfer in question seems to be still open we beg to formally withdraw same.”
Up to that time there had been no breach of any contract, so that the vexed question of the statute of limitation need not be discussed. The bringing of this action to recover the balance of account was a sufficient demand, and unless there be a defect of pleading the plaintiff was entitled to recover the same, with trust company interest from the time when the defendant first knew of the interception of its cables until the date when payment was demanded, and with interest at 6 per cent, from the latter date until the time of rendering judgment.
The contention that the pleadings are insufficient to sustain a recovery on grounds we have discussed must likewise fail. It is true that the complaint alleges a breach of an agreement to transmit “by wireless 250,-000 marks at .69 or better,” and states that the defendant failed to carry out the terms of this agreement, and does not plead the provision of the agreement that “no liability shall attach * * * for any cause beyond our control.” This omission could not surprise or prejudice the defendant, when the evidence respecting the dealings of the parties consisted of stipulated written documents. Moreover, the complaint states that the plaintiff served upon the defendant written “notice of rescission” on November 23, 1922, and alleges a demand and failure to pay $43,137.72. The cause of action, though somewhat inartifieially set forth, is therefore sufficiently stated. While “rescission” was perhaps an inaccurate word to use, it indicated that the plaintiff was seeking recovery *678upon a canse of action other than the breach of an agreement to make a transfer of foreign credit, and showed that the plaintiff sought to recover the balance of its account, which the defendant had refused to pay.
As this action was at common law, a new trial must be granted, but the rules which must govern have been sufficiently stated, so that its future disposition should be simple.
Judgment reversed.