MURNAGHAN, Circuit Judge:
Baumlin & Ernst, Ltd., plaintiff and appellee, is a Swiss corporation which manufactures and exports yarn for sale in the United States and elsewhere. Commencing in October of 1972, several lots were sold and delivered to Gemini, Ltd., a North Carolina corporation.
The initial lot and all subsequent lots were covered by an order confirmation form employed by appellee identical in all cases except for the specification as to date and price for each individual order. The order form, inter alia, states that, in the absence of an agreement to the contrary, prices would be expressed in Swiss francs per kilo.
The stipulation was entered on January 26, 1976, the day before the case was scheduled to proceed to trial in the United States District Court for the Western District of North Carolina. The only issues to be tried were whether or not the two Stickleys as individuals and the Stickley corporation were liable on guarantees of Gemini's obligation.
On the morning of trial the parties, assisted by Judge James B. McMillan, entered a stipulation which was expressed in the form of a consent judgment signed by all the parties as well as by Judge McMillan.
The consent judgment called for the staging of payments for the period extending to and including December 31, 1980. The defendants first confessed judgment in the aggregate sum of sfr. 569,067.70
1. On or before February 3, 1976 sfr. 13,024.22 2. On or before December 31, 1976 sfr. 52,096.90 3. On or before December 31, 1977 sfr. 65,121.12 4. On or before December 31, 1978 sfr. 65,121.12 5. On or before December 31, 1979 sfr. 65,121.12 6. On or before December 31, 1980 sfr. 65,121.12 __________ sfr. 325,605.60.
Outstanding unpaid balances were to bear interest at the rate of 7% per annum, payments in Swiss francs were to be by cashier's checks, and the defendants agreed on demand to execute negotiable instruments evidencing the obligations.
In the event of a default in timely payment of the staged payments or of accrued interest, Baumlin & Ernst, Ltd. was entitled to immediate judgment and execution on the sum of sfr. 569,056.70, less credit for sums paid in the interim. To date all payments, save that which will fall due on December 31, 1980, have been made.
The consent judgment was expressed in francs and not in U. S. dollars because of the explicit and firm insistence on the part of Baumlin & Ernst, Ltd. that provision for payment in stages over a period in excess of four years introduced the possibility of currency fluctuations. Baumlin & Ernst, Ltd. was unwilling to run that risk in United States dollars and would only accept the exposure in Swiss francs.
For a time all was peaceful. Appellants paid the first five installments either in Swiss francs or in the current amount of dollars which, at the then prevalent rate of exchange, translated into the specified number of Swiss francs. However, the exchange rate has, on the whole, substantially worsened from the point of view of the holder of U. S. dollars. The 1976 rate of $.3875 applicable to the February 3, 1976 payments slid to $.4095 for the December 31, 1976 installments, to $.5146 for the December 31, 1977 installment, to $.6090 for the December 31, 1978 installment, and to $.625 for the December 31, 1979 installment. As of the writing of this opinion, the exchange rate had somewhat improved, from defendants' point of view, to $.5720.
On August 1, 1979, the Stickleys filed a Fed.R.Civ.P. Rule 60(b) motion to vacate
The principal contention of appellants centers on the argument that statutory requirements governing currency of the United States and legal limits on monetary methods of satisfying obligations render the judgment void. There is, however, a substantial difference between a judgment which is erroneous and one which is altogether void:
Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649 (1st Cir. 1972).
V. T. A., Inc. v. Airco., Inc., 597 F.2d 220, 224-25 (10th Cir. 1979).
The present case clearly met diversity requirements for jurisdiction. More than
Appellants assert, however, that the cases holding a judgment at most erroneous but not void deal with a less serious disregard of statutory requirements and of the public purposes behind them. The appellants seek so to elevate the importance of statutes dealing with United States currency as to make the claimed infringement which they here perceive serious enough to invalidate in toto any resulting court decree or judgment. In particular they cite 31 U.S.C. § 463 which reads:
Defendants cite in support of their contentions Guaranty Trust Co. v. Henwood, 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266 (1939). Henwood upheld legislation enacted as part of the comprehensive remedies adopted to overcome the stagnation of the depression. The legislation was intended to free the economy from the effects of loan agreements designed to permit some transactions to be conducted on the gold standard or its substantial equivalent while the welfare of the country dictated that its currency be no longer tied to gold. In Henwood the bonds issued in 1912 of a railroad stated that they were payable in United States dollars or, at the option of the holder, in currency of a number of other countries (English pounds, Dutch guilders, French francs, or German marks). If one
The objective of the statute and of the Henwood decision manifestly is not frustrated in the instant case. The contract which the consent judgment of January 27, 1976 represented called solely and exclusively for payment in francs. While the Swiss have a long-held and deserved reputation for prudence in money matters, there was nothing in law or in experience to guarantee that the dollar inevitably would be devalued as against the Swiss franc rather than the other way round. Indeed, in these days of extremely high interest rates, there are constant fluctuations and sometimes the dollar rises as against the franc and sometimes it declines. See Deutsche Bank Filiale Nurnberg v. Humphrey, 272 U.S. 517, 519, 47 S.Ct. 166, 167, 71 L.Ed. 383 (1926) ("An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it"). The events ultimately produced a situation in which $.3875 would no longer buy a franc and $.625 was required. Yet, had the fiscal policies of the countries involved been otherwise, it might have gone the other way.
On the contrary, there was no provision, under the consent judgment, for payment in United States dollars at all. It was cast solely in francs. Payment could work, and in fact has worked, out to more than if the obligations had been expressed in United States dollars. However, the opposite could have occurred, so that payments in Swiss francs could have been less than they would have been had the medium of the agreement been United States dollars. In short, the transaction, as constructed, was a two-way street, though in fact travel turned out to be all in one direction. In Henwood, the street was one-way, and there was no possibility of going more than one direction.
The language of 31 U.S.C. § 463 declares a transaction to be against public policy which created a right in the obligee to require payment (a) in gold, (b) in a particular kind of coin or currency (specifically defined in the statute as meaning "coin or currency of the United States"), or (c) an amount of money of the United States measured thereby. It is indisputable that the consent judgment did not call for payment in gold; nor in United States coin or currency, nor in money of the United States, however measured. The appellants made the required periodic payments in the amounts of United States dollars which, at the time of payment, would purchase the requisite number of Swiss francs. Baeumlin & Ernst, Ltd. accepted the payments in dollars, presumably since it could immediately convert, and, therefore, there was no
The statute, 31 U.S.C. § 463, makes even clearer, if necessary, that so presentable a trading transaction as that with which we are concerned is not prohibited by legislative terms. Among the definitions in 31 U.S.C. § 463 is one for the term "obligation" as meaning an obligation "payable in money of the United States."
Accordingly, we have no occasion to address the question of whether, if there were a contravention of 31 U.S.C. § 463, it would render the consent judgment void, or merely erroneous.
To endeavor to remedy the fatal defect in the appellants' case stemming from the fact that the obligation was expressed exclusively in Swiss francs and not at all in dollars, they urge that the original obligations, the payments due under each confirmation order, were expressed in dollars. They argue that once so expressed the agreement took on a United States money character which could not be shed by a subsequent agreement expressed exclusively in Swiss francs. Conceivably, such an argument, if it had merit, could lead us into a tangled area. The standard order confirmation form employed by Baeumlin & Ernst, Ltd. states:
Further, say appellants, even assuming that the confirmation orders spoke in Swiss francs, nevertheless, by stipulation, the parties agreed on January 26, 1976 that "Gemini, Ltd. is indebted to Baumlin & Ernst Ltd. in the sum of $144,249.89." However, the stipulation was entered in contemplation of a trial in a court of the United States which, upon completion, since there would be no agreement of the parties to employ Swiss francs as the currency medium, would lead to the entry of a customary judgment, not of a consent judgment entered at the behest of all parties. Such a customary judgment would have had to have been stated in United States dollars.
Hence, there was no possibility, at the time the stipulation was entered, for it to be couched in any currency but United States dollars. Correspondingly, of course, the obligation to which the stipulation was, in fact, addressed was an altogether current one to be collectible immediately, and immediately convertible into Swiss francs, without the heightened risks of devaluation inherent in any plan for satisfaction on an extended installment payment plan.
When settlement was finally hammered out, it was with the essential differentiating condition present, namely, staged payment over a period in excess of four years. Entering the picture contemporaneously with the installment payment plan was the substantial risk of fluctuation in currency values. Thus, regardless of whether the original confirmation orders were in dollars, and acknowledging that the stipulation expressed itself in United States currency, nevertheless, the consent judgment of January 27, 1976 amounted to an entirely new agreement not subordinate to anything that had gone before. It is stated exclusively in terms of payment in Swiss francs and does not in any way qualify as an obligation payable in money of the United States. It, therefore, is irrelevant whether the original confirmation orders or the subsequent stipulation of January 26, 1976 are obligations payable in money of the United States.
Appellants' argument that it is no longer equitable that the consent judgment of January 27, 1976 should have prospective application, and so the relief provisions of Fed.R.Civ.P. 60(b)(5) should apply,
For the same reason there is nothing to justify invocation of the catch-all language of Fed.R.Civ.P. 60(b)(6) ("any other reason justifying relief from the operation of the judgment"). Judge McMillan's opinion cogently establishes why the consent judgment was fair and equitable and has remained so, and no other convincing reason justifying relief has been suggested.
Accordingly, the judgment is affirmed.
The language in Fed.R.Civ.P. 60(b)(5) omitted from the quotation in the text has no applicability since the language is restricted to a situation in which the judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, yet a claim for payment of what has already been satisfied, released, discharged or reversed is still being or may be made. As to the payments already made, i. e. those which matured on December 31, 1979, and all prior dates, there is no contention by plaintiff that the judgment, to that extent, has not been pro tanto satisfied. There consequently is no need or occasion for relief from those previously discharged portions of the judgment, on the grounds that plaintiff is demanding payment of installments of December 31, 1979 or theretofore.
The contention of defendants is simply that only the conversion rate of $.3875 per Swiss franc in force in January 1976 should have been used throughout, so that the aggregate of the installments should have amounted to $126,172.17, and that, with the December 31, 1979 payment, of the then equivalent for sfr. 65,121.12 of $40,705.76, the transfers in dollars equalled in aggregate $140,256.42. On that approach defendants seek reimbursement of $14,084.25 ($140,256.42 minus $126,172.17), and an order excusing them from any payment on the December 31, 1980 installment.
In all events, such a need for modification would not signify that the judgment was entirely void.
a) Vorbehaltlich anderslautender Vereinbarung gelten die Preise franko gewoehnliche Fracht schweizerische Talbahnstation oder schweizerische Grenzstation und verstehen sich in Schweizer Franken per Kilo.
b) Nach Auftragserteilung neu in Kraft tretende Zoelle oder Zollerhohungen oder andere Abgaben. Erhohung der Eisenbahnfrachten, Aenderung in der Goldmuenzparitaet des betroffenden Landes, sofern der Verkauf in fremder Waehrung erfolgte, und alle sonstigen Umstaende, wodurch eine Lieferung in irgendeiner Form mittelbar oder unmittelbar verteuert wird, gehen zu Lasten des Kaeufers.