B-143720, FEB. 17, 1961

B-143720, FEB. 17, 1961

ERNEST H. NORBACK, ESQ.:

YOUR LETTER OF JANUARY 31, 1961, WRITTEN IN BEHALF OF MRS. JULIA DE LA CALZADA GARCES, REQUESTS RECONSIDERATION OF OUR DECISION OF OCTOBER 12, 1960, B-143720, TO MRS. GARCES, DENYING HER CLAIM FOR THE PROCEEDS OF CHECK NO. 1,380,258, IN THE AMOUNT OF 1,782.34 PESOS, DRAWN TO HER ORDER ON MAY 22, 1950, UNDER THE NAME OF JULIA C. PETERS, THROUGH THE NATIONAL CITY BANK OF NEW YORK, MANILA BRANCH, UNITED STATES DEPOSITARY.

MRS. GARCES' REQUEST FOR RECONSIDERATION APPEARS TO BE BASED UPON THE CONTENTION THAT SHE RECEIVED ONLY $500 FROM MR. COHEN FOR THE 1,782.34 PESOS CHECK RATHER THAN $1,000 AS STATED BY MR. COHEN. YOU APPEAR TO BELIEVE THAT THIS CONTENTION IS SUPPORTED BY CERTAIN "DISCREPANCIES" IN THE RECEIPT FURNISHED BY MR. COHEN TO SUPPORT HIS STATEMENT AND REFERRED TO IN OUR DECISION OF OCTOBER 12, 1960. IT SHOULD BE STATED THAT WE WERE AWARE OF AND CONSIDERED THESE SO-CALLED DISCREPANCIES PRIOR TO THE ISSUANCE OF OUR DECISION OF OCTOBER 12, BUT DEEMED THEM TO BE OF NO CONSEQUENCE.

WHILE IT IS TRUE THAT THE ARRANGEMENT OF THE WORDS ON THE RECEIPT ARE AS STATED IN YOUR LETTER, WE DO NOT BELIEVE THAT SUCH ARRANGEMENT ALTERS THE MEANING OF THE RECEIPT. THE RECEIPT IS WRITTEN BY HAND ON A STANDARD TYPE FORM OF PRINTED RECEIPT WITH THE WORDS "PHILLIPINE WAR" RATHER THAN IMMEDIATELY FOLLOWING THE HANDWRITTEN "ONE THOUSAND 00/100.' THIS POSITIONING CLEARLY IS DUE TO THE FACT THAT A PRINTED RECEIPT FORM WAS USED AND DOES NOT EVINCE AN INTENTION TO DISASSOCIATE THE PRINTED WORD "DOLLARS" FROM THE HANDWRITTEN "ONE THOUSAND 00/100.' IN ADDITION, THE PRINTED WORD ,DOLLARS" IS NOT STRICKEN OUT, NOR DOES THE WORD "PESOS" APPEAR ON THE RECEIPT ANYWHERE OTHER THAN IN THE DESCRIPTIVE REFERENCE TO THE CHECK ITSELF. THERE IS ALSO FOR CONSIDERATION THE FACT THAT MR. COHEN CASHED THE CHECK IN A LOS ANGELES BANK. THIS FACT IS CONCEDED BY MRS. GARCES. IT SEEMS OBVIOUS THAT A LOS ANGELES BANK WOULD HAVE GIVEN MR. COHEN DOLLARS AND NOT PHILIPPINE PESOS, AND IT ALSO SEEMS OBVIOUS THAT MR. COHEN COULD HAVE PAID MRS. GARCES ONLY IN DOLLARS AND NOT IN PHILIPPINE PESOS. IT SEEMS VERY UNLIKELY THAT MRS. GARCES WOULD HAVE SIGNED A RECEIPT FOR PESOS AS YOU CONTEND IF SHE HAD ACTUALLY RECEIVED DOLLARS. HENCE, IN OUR OPINION THE RECEIPT ADEQUATELY SUPPORTS MR. COHEN'S CONTENTION THAT HE PAID MRS. GARCES $1,000 FOR THE CHECK IN QUESTION.

WITH REGARD TO YOUR QUESTION AS TO THE DATE OF THE RECEIPT, IT SHOULD BE NOTED THAT MR. COHEN'S LETTER, QUOTED IN PART IN OUR DECISION OF OCTOBER 12 DOES NOT STATE THAT HE GOT THE RECEIPT FROM MRS. GARCES AT THE TIME HE PAID HER THE $1,000. PRIOR CORRESPONDENCE IN OUR FILE, WHICH WAS NOT QUOTED IN OUR DECISION BECAUSE IT DID NOT SEEM NECESSARY, STATES THAT MRS. GARCES GAVE MR. COHEN THE RECEIPT AFTER HE HAD ADVISED HER THAT THE BANK HAD CHARGED BACK TO HIS ACCOUNT THE AMOUNT PREVIOUSLY CREDITED THERETO ON THE BASIS OF THE CHECK AND SHE HAD REFUSED TO RETURN HIM THE MONEY HE HAD PAID HER. IN ANY EVENT, WHILE THE DATE ON THE RECEIPT DOES NOT AFFECT MR. COHEN'S VERSION OF THE TRANSACTION, IT CLEARLY DEFEATS MRS. GARCES' ALLEGATION THAT SHE SIGNED THE RECEIPT BEFORE MR. COHEN WENT TO THE BANK.

ALSO, MRS. GARCES' STATEMENT IN HER LETTER OF AUGUST 29, 1960, WITH RESPECT TO HAVING RECEIVED $500 FROM MR. COHEN FOR THIS CHECK IS AS FOLLOWS:

"THEN WHEN HE CAME BACK FROM THE BANK HE EXPLAINED THAT HE WAS ABLE TO GET $891.75 AND IN FAIRNESS TO HIS SERVICES AND KINDNESS, I ONLY TOOK $500 AND LET HIM KEEP THE REST AS DOWN PAYMENT FOR HIS FEES AS HE ADVISED ME THAT TWENTY THOUSAND BUDGET HAS BEEN APPROVED BY THE WAR CLAIMS COMMISSION AND THAT SETTLEMENT SHALL BE MADE IN INSTALLMENT BASIS.'

OBVIOUSLY, IF WE ACCEPT MRS. GARCES' STATEMENT THAT SHE RECEIVED $500 FROM MR. COHEN FOR THE CHECK, WE MUST LIKEWISE ACCEPT HER STATEMENT,CONTAINED IN THE SAME SENTENCE, THAT MR. COHEN HAD OBTAINED $891.75 FOR THE CHECK AND THAT SHE VOLUNTARILY "LET HIM KEEP" THE REMAINING $391.75 AS PART PAYMENT ON THE FEES SHE OWED HIM. SINCE $891.75 IS APPROXIMATELY THE DOLLAR VALUE OF THE CHECK AT THE EXCHANGE RATE IN EFFECT AT THE TIME, BY HER OWN STATEMENT (THE STATEMENT ON WHICH HER CLAIM IS BASED) MRS. GARCES ACKNOWLEDGES RECEIVING FULL VALUE FOR THE CHECK--- $500 IN CASH AND $390.75 CREDITED AGAINST FEES OWED BY HER TO MR. COHEN. THUS, HER CLAIM IS DEFEATED BY THE SAME ALLEGATION ON WHICH HER REQUEST FOR RECONSIDERATION IS BASED.

HENCE, MR. COHEN'S CLAIM FOR THE CHECK IN QUESTION WAS SUPPORTED BY MRS. GARCES' BLANK ENDORSEMENT ON THE CHECK TOGETHER WITH A RECEIPT SIGNED BY MRS. GARCES ATTESTING TO HER RECEIPT OF VALUE THEREFOR FROM MR. COHEN, WHEREAS MRS. GARCES' CLAIM HAD NO SUPPORT OTHER THAN HER OWN CONTRADICTORY STATEMENTS, WHICH WERE ESSENTIALLY SELF-DEFEATING. MOREOVER, THE SIGNATURES OF MRS. GARCES ON BOTH THE CHECK AND THE RECEIPT WERE EXAMINED BY THE EXAMINER OF QUESTIONED DOCUMENTS IN THE TREASURY DEPARTMENT AT OUR REQUEST AND PRONOUNCED GENUINE. I BELIEVE YOU WILL AGREE THAT IN THE CIRCUMSTANCES, WE HAD NO ALTERNATIVE BUT TO ALLOW MR. COHEN'S CLAIM FOR THE 1,782.34 PESOS CHECK. OUR DECISION OF OCTOBER 12, 1960, MUST BE AND IS SUSTAINED.

MRS. GARCES' ALLEGATIONS WITH RESPECT TO CHECK NO. 1,392,578 FOR 586.75 PESOS ALSO ARE CONFLICTING. WHILE SHE STATED IN HER LETTER TO US DATED AUGUST 29, 1960, THAT SHE HAD ENDORSED THAT CHECK SO THAT MR. COHEN COULD CASH IT FOR HER BUT ACTUALLY RECEIVED NO MONEY THEREFOR, HER LETTER OF FEBRUARY 14, 1956 (WHICH, AS WE STATED IN OUR DECISION OF OCTOBER 12, WAS ADDRESSED TO THE DIVISION OF DISBURSEMENTS OF THE UNITED STATES TREASURY AND NOT TO OUR OFFICE) STATES THAT SHE RECEIVED THE CHECK FOR 586.75 PESOS. THIS STATEMENT, TOGETHER WITH THE RECEIPT FOR THAT CHECK WHICH SHE GAVE TO MR. COHEN ON OCTOBER 24, 1950, AND THE FACT THAT THE CHECK WAS CASHED ON HER GENUINE ENDORSEMENT AND DOES NOT BEAR MR. COHEN'S SIGNATURE, ADEQUATELY SUPPORTS MR. COHEN'S CONTENTION THAT HE GAVE HER THE CHECK AND DID NOT CASH IT HIMSELF. FURTHERMORE, MRS. GARCES' ENDORSEMENT ON THIS CHECK, AS WELL AS HER SIGNATURE ON THE RECEIPT THEREFOR WHICH SHE GAVE TO MR. COHEN, WERE ALSO EXAMINED AT OUR REQUEST BY THE EXAMINER OF QUESTIONED DOCUMENTS AND PRONOUNCED GENUINE. IN ANY EVENT, SINCE THE CHECK FOR 586.75 PESOS HAS BEEN PAID, AS WE ADVISED MRS. GARCES IN OUR DECISION OF OCTOBER 12, CONSIDERATION MUST BE GIVEN TO 31 U.S.C. 122 WHICH PROVIDES AS FOLLOWS:

"HEREAFTER ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS WARRANT, OR WARRANTS APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR THE TREASURY DEPARTMENT TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURER OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED. HOWEVER, ANY CLAIMS FOR THE PROCEEDS OF CHECKS PAYABLE IN PHILIPPINE PESOS HERETOFORE ISSUED IN PAYMENT OF CLAIMS CERTIFIED BY THE PHILIPPINE WAR DAMAGE COMMISSION, SHALL NOT BE BARRED IF RECEIVED BY THE REPRESENTATIVE OF THE CHIEF DISBURSING OFFICER, UNITED STATES TREASURY DEPARTMENT, AT MANILA, REPUBLIC OF THE PHILIPPINES, WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF SUCH CHECKS.'

SINCE MRS. GARCES' FIRST ALLEGATION OF NONRECEIPT OF THIS CHECK APPEARS IN HER LETTER TO US DATED AUGUST 29, 1960, OVER TEN YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, THE ABOVE-QUOTED PROVISION OF LAW EFFECTIVELY BARS ANY CLAIM THEREFOR.

IN ACCORDANCE WITH YOUR REQUEST, THERE ARE ENCLOSED A COPY OF THE RECEIPT DATED OCTOBER 24, 1950, AND A COPY OF THE LETTER TO THE DIVISION OF DISBURSEMENTS, DATED FEBRUARY 14, 1956. THERE IS ALSO ENCLOSED A COPY OF THE CHECK FOR 586.75 PESOS. WE HOPE THAT AN EXAMINATION THEREOF MAY REFRESH MRS. GARCES' RECOLLECTION OF HAVING CASHED THE CHECK.