Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Code. No copy complaint was served with the summons. Upon an affidavit of the non-appearance of the defendant, plaintiff procured an assessment of damages by the clerk, and perfected judgment thereon January 21, 1865. The complaint alleged fraud in the contracting of the debt in suit. Defendant subsequently obtained a discharge under the bankruptcy act. In August, 1871, plaintiff made a motion for leave to issue execution. Defendant denied the facts stated in plaintiff's affidavits, and set up his discharge.

Held, that defendant was not concluded by the allegations of fraud in the complaint, but plaintiff's right of action for or remedy under the statutes of this State, by reason of the fraud, was merged in the judg

ment.

Plaintiff's proper remedy was to apply to the Court under §71 of the Code, upon affidavits disclosing the questions to be litigated, for leave to bring an action upon his judgment. Shuman v. Strauss. Opinion by Allen, J.

2. Where the facts upon which a motion for leave to issue execution are disputed, an order denying the motion is within the discretion of the Court, and is not appealable. Ib.

the present appellants, children of the intestate, asked that the claim be disallowed and the previous decree re-opened for error in law. The application was denied. Held, no error; that the judgment of the Supreme Court was binding, and the surrogate had no discretion in the premises. Reed et al. v. Reed, Adm'x, etc. Opinion by Allen, J.

2. Also held, that a surrogate can only award taxable costs to litigants. It is error to allow a sum in gross to the counsel of the prevailing party. Ib.

3. In 1846, at the request of the intestate, a note of $1,000 was made payable to the order of intestate's wife, by one of his debtors, who delivered the same to her. She kept it until 1855, and it was at all times recognized as her property by the intestate. In 1855 the intestate gave this note, and another for $360 belonging to the wife, with the assent of the latter, in payment of property purchased by him, and gave his note to his wife for the amount thereof, with interest. Held, that the circumstances attending the execution and delivery of the first note constituted a valid gift in equity from the husband to the wife, and vested in her an equitable title as against the husband's next of kin. A loan was evidenced from the subsequent transaction from the wife, which was to be repaid by the husband or from his estate, and therefore the claim of the wife was prop

Whether under § 33 of the bankrupt act of 1867, which declares that no debt created by the fraud of the bankrupt shall be discharged under the act, a judg-erly allowed. Ib. ment creditor can go behind a judgment and show that the debt for which it was recovered was created by the fraud of the debtor, and thus have execution upon the judgment, notwithstanding the debtor's discharge in bankruptcy, quere. Ib.

STATUTE OF FRAUDS.

1. Frauds in contracts void under.- Action to recover damages alleged to have been caused by defendant falsely representing that he was authorized to lease, as agent for the College of Physicians and Surgeons, certain premises in New York city, and as such agent he entered into a parol contract with plaintiff to lease said premises to plaintiff for the term of two years; on the faith of which plaintiff incurred expense in procuring fixtures to fit up the premises. Held, that as the contract would have conferred no rights upon plaintiff if defendant had possessed the authority claimed, that plaintiff was not injured by the representations, and could not maintain an action either upon the contract or in tort. Dung v. Parker. Opinion by Andrews, J.

2. A contract void by the statute of frauds cannot be enforced, directly or indirectly. It confers no rights and creates no obligations as between the parties to it, and no claim can be founded upon it as against third persons. Whatever may be the form of an action at law, if the proof of such a contract is essential to maintain it there can be no recovery. Ib.

SURROGATE- HUSBAND AND WIFE.

1. Appeal from an order of the General Term of the Supreme Court, affirming a decree of the surrogate of the county of Queens, allowing certain claims against the estate of R., deceased. One of the claims in question was allowed with others by a former decree, which was appealed from and the decree reversed by the Supreme Court as to a single claim, not the one in question, and affirmed as to the residue, and the proceedings remitted for a further hearing. This order was not appealed from. Upon the remittitur the surrogate made a decree directing a sale of the real property for the payment of debts. Upon a sale of the real property, and the bringing in of the proceeds for distribution,

WILL.

Proof of due execution: burden of proof. This is an appeal from a judgment of the General Term affirming a decree of the surrogate of Queens county, confirming the probate of the will of K. The will was drawn by an experienced lawyer, according to instructions given by the testator, and he and his clerk signed the same as witnesses. The attestation clause complied with all the requirements of the statute. Neither of the witnesses could remember any thing in regard to the execution of the will. Eleven years had elapsed from the date of the execution of the will before the witnesses were called upon to testify.

Held, that the proponents of a will hold the affirmative, and must establish its due execution under and in accordance with the statute of wills (2 R. S. €3, § 40). If the attestation clause is full, and the signatures genuine, and the circumstances corroborative of due execution, and no evidence is given disproving a compliance with the statute in any particular, the presumption may be lawfully indulged, that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution, or what took place at that time. In re Will of Kellum. Opinion by Church, Ch. J.

BANKRUPTCY LAW.

NOTES OF RECENT DECISIONS.

AMENDMENT OF MARCH 3.

1. The amendment to the bankrupt act of March 3, 1873, held constitutional in this case. In re Smith, U. S. Dist. Ct. N. D. Ga., 8 N. B. R. 401.

2. A bankrupt who files his petition after the passage of act of March 3, 1873, is entitled to have the assignee set apart to him the exemptions "as existing in the place of his domicile on the 1st day of January, 1871," even though there are judgments in force rendered prior to the passage of the State act giving the increased exemption. Ib.

3. The amendment of March 3, 1873, does not destroy ination reduced to writing, and sworn to and subscribed the uniformity of the bankrupt act. Ib. by the witness. Ib.

4. Congress has power to destroy existing contracts and to release liens held for their enforcement. Ib.

BOOKS OF ACCOUNT-CROPS-RENEWED NOTES. 1. Where a bankrupt, after March, 1867, fails to keep proper books of account-such books as will enable an ordinary book-keeper to determine his true financial condition - his discharge will be refused. In re Schumpert, U. S. Dist. Ct. N. D. Miss., 8 N. B. R. 415. 2. Growing crops unmatured should be entered by the bankrupt on his schedule of personal property. Ib. 3. For a debt contracted in 1863, a note was given at twelve months, and each year thereafter until 1870the old note was taken up and a new note given, the last note given in 1870.

Held, this was not a debt contracted prior to January 1, 1869, but comes under the fifty per cent clause. Ib.

CONTINUING CONTRACT.

On a continuing contract, where the liability is incurred from day to day, or month to month, a discharge in bankruptcy cannot be pleaded as a bar to any part of the liability incurred after the date of the commencement of proceedings in bankruptcy. Robinson et al. v. Pesant et al., Ct. of App. N. Y., 8 N. B. R. 426.

CORPORATION.

When the interests of all parties seem to demand it, the court is authorized to direct the assignee to sell the real estate of a bankrupt corporation free from all liens, except the existing and recorded mortgages. In re National Iron Company, U. S. Dist. Ct. W. D. Penn., 8 N. B. R. 422.

CORPORATIONS.

1. Under acts authorizing corporations to organize upon payment of a certain proportion, say ten per cent, of the capital subscribed, in cash, and the balance in notes duly secured, the amount so due by a stockholder on these notes is in the nature of a trust fund, pledged to the creditors of the company, and a court of bankruptcy will not allow him to set off against such trust indebtedness an ordinary claim (as a loss on a policy in an insurance company), due him by the company. Scammon v. Kimball, U. S. C. Ct. N. D. Ill., 8 N. B. R. 337.

2. A treasurer of a company is a trustee of the money of the company received by him as treasurer, and cannot set off against the amount due by him for such funds a claim against the company of ordinary debt, as a loss on a policy in an insurance company. Ib.

COSTS-EXAMINATION.

1. Where, on the return of an order to show cause why a bankrupt should not be discharged, a creditor appeared and asked leave to examine the bankrupt:

Held, the creditor must pay the register the cost per folio of taking the deposition, but not his per diem, or fees for administering oath or granting certificate. In re Jackson, U. S. Dist. Ct. E. D. N. C., 8 N. B. R. 424. 2. The creditor must pay for such services performed by the register at his request as are in addition to those that the register would have been compelled to perform had the creditor not appeared. Ib.

3. The bankrupt, or his estate, must pay for such part of the services as would have to be necessarily performed had the creditor not appeared. Ib.

4. The party examining has a right to have the exam

FORECLOSURE OF MORTGAGE.

Where a mortgagee proceeded in the State court, after petition in bankruptcy was filed by the mortgagor, with knowledge thereof, to foreclose his mortgage, without first obtaining the permission of the bankrupt court: Held, he was in contempt, and the sale itself a nullity; by the filing of the petition all the property of the bankrupt is eo instanti placed in the custody of the bankrupt court. Phelps v. Sellick, U. S. C. Ct. E. D. Mich., 8 N. B. R. 390.

HOMESTEAD.

A merchant, while in insolvent circumstances, selling for cash the homestead which he had previously occupied, and not accounting for the proceeds of the sale, and moving into a portion of his store, is not entitled to hold the latter as a homestead exempt from his debts. In re Wright, U. S. Dist. Ct. E. D. Wis., 8 N. B. R. 430.

JUDGMENT CREDITOR.

1. At common law a writ of error and supersedeas of execution leaves the judgment intact, and it is a provable debt in bankruptcy. In re Sheehan, U. S. Dist. Ct. E. D. Mich., 8 N. B. R. 345.

2. The levy by a creditor of an execution on sufficient property to satisfy his debt does not estop him from moving to have his debtor adjudged bankrupt, but the filing of the petition in bankruptcy will be held a waiver of the levy, and an election by the creditor to proceed in the bankrupt court. Ib.

3. Where a judgment on which a supersedeas and stay of execution has been granted by the State court, pending the decision of a writ of error, is proved in bankruptcy, the bankrupt court will stay the payment of any dividends on the claim during the pendency of the writ of error. Avery v. Johann, 3 N. B. R. 36, dissented from.

MARRIED WOMEN.

1. A married woman can only be adjudged bankrupt when the law of her domicile gives her the power to contract. In re Goodman, U. S. Dist. Ct. Ind., 8 N. B. R. 381.

2. In Indiana a married woman, unless possessed of separate estate, is incapable of making a contract. Ib.

NEW ACCOUNT COSTS AGENT.

1. Where a creditor of a bankrupt, knowing him to be in failing circumstances, agrees to open a new account, irrespective of the old indebtedness, and to account for the proceeds of goods sent him for sale, by turning over the cash or notes received therefor, the creditor cannot, after the petition is filed, set off the amount due by him on the new account against the amount due him on the old account. In re Troy Woolen Company, U. S. Dist. Ct. N. D. N. Y., 8 N. B. R. 412.

2. Where the assignee in bankruptcy, at the instance and request of one creditor, contests the validity of the claim of a second creditor, and the cause is decided adversely to the assignee, the creditor at whose instance the proceedings were instituted will be required to pay all the cost of the proceeding, and the creditor whose claim is thus wrongfully contested may have execution therefor. Ib.

3. A party dealing with an agent may resort to the principal to compel performance of the agreement of the agent, unless the contract was made exclusively on the credit of the agent. Ib.

PARTNERSHIP EXEMPTION.

The individual members of a commercial firm are entitled to have the exemptions allowed them by the bankrupt act set apart to them out of the firm assets, where the individual assets of each copartner is not sufficient. In re McKercher & Pettigrew, Sup. Ct. Dakota T., 8 N. B. R. 409.

PETITION ON ONE DEBT.

1. Where there are no other debts besides that of the petitioning creditor, on which the debtor may be adjudged bankrupt, he is entitled to have the proceedings against him dismissed on the payment of the petitioning creditor's debt and the costs. In re Sheehan, U. S. Dist. Ct. E. D. Mich., 8 N. B. R. 353.

2. In a case where the adjudication has been resisted, the petitioning creditor may recover the costs that are allowed by law to a party recovering in a suit in equity, as defined by act of February 26, 1853. 10 Stat. at Large, 161. Ib.

3. In such case a special allowance for counsel fees cannot be made. It is doubtful if it can be legally done in any case. Ib.

PREFERENCE.

1. To establish an intent to prefer a creditor, it is sufficient for the assignee to show that the bankrupt, while insolvent, paid or secured this creditor in full without making adequate provisions for the other creditors, and this will place upon the defendant the onus of satisfying the court, that at the time of making the transfer or payment the bankrupt did not know he was insolvent. Stobaugh v. Mills and Fitch, U. S. Dist. Ct. Tex., 8 N. B. R. 361.

2. It is sufficient proof that the creditor had reasonable cause to believe that the debtor intended to prefer him to show that at the time of receiving the preference he had reasonable cause to believe the debtor insolvent, and that the debtor knew of his insolvency. Ib.

3. A deed of assignment by A to B and C, within four months prior to commencement of proceedings in bankruptcy, of all of A's property in trust, to pay first the debts of B, C and D in full, and to apply the balance pro rata upon the debts of the other creditors, and the amount turned over being insufficient to pay all in full, is void on its face, and a palpable and manifest attempt to prefer B, C and D, and to evade the provisions of the bankrupt act. Ib.

GENERAL TERM ABSTRACT.

SUPREME COURT-FOURTH DEPARTMENT, OCTORER, 1873.

MASTER AND SERVANT,

1. Contractors: liability of railroad company for acts of its agents, etc.-Where a contractor doing work on defendants' road trespassed upon plaintiff's land, and took therefrom dirt, gravel, etc., and appropriated it to the making and construction of defendants' roadbed, with the knowledge and assent of the engineers and several of their directors, and the referee so finds and directs a judgment for the plaintiff. On appeal by defendants: Held, that while the acts complained of were the trespasses of the contractors alone, the rule exempting an employer from direct or consequential damages done by his agent, does not apply to the case of

the taking by the agent of the property of another and appropriating it to the use and benefit of the employer. In this case several of the directors and the engineer in charge knew of the taking of the earth, gravel, etc., at the time of its taking, and knew that they had no right to take the same, and assented to said taking, if they did not direct it, and must be deemed to have assented to the taking and conversion. Defendants cannot retain the benefit of the trespass of their contractors committed for their benefit and be exempt. Judgment affirmed. McClenathan v. N. Y. and Oswego Midland R. R. Co. Opinion by E. D. Smith, J. 2. Acts of agents, liability for, by company to co-servant. - Plaintiff brought action to recover damages, resulting from the death of her husband, by a collision, while an engineer on a train on defendant's road, which collision was occasioned by the negligence of a telegraph operator and train dispatcher on said road. Said operator was appointed and retained by one F., the division superintendent, who had the general charge of the division where the accident occurred, and of the telegraph operator, etc. One C., his assistant, in the absence of F., performed his duties. Evidence was given tending to show that said operator was addicted to habits of intoxication, and that this fact was known to said F. and his assistant. The circuit judge charged the jury that F., and, in his absence, his assistant, was to be treated as the master and executive officer of the road. On a verdict for the plaintiff at the circuit, a motion was made for a new trial, which was granted, on the ground that the plaintiff's husband and the telegraph operator were fellow-servants of a common master, engaged in the same general business, and that the risk was one that each took in the service of such common master. On appeal from the order granting a new trial to this court: Held, that it was the duty of the company to use reasonable care to provide and employ none but competent and skillful servants, and to discharge from its employ, on notice thereof, any who fail to continue such, and that the defendant was negligent toward the plaintiff in retaining the operator after his habits of drinking to intoxication were known to its general agent or superintendent. F., and, in his absence, his assistant, were the proper representatives of the company, and their knowledge of the habits of the operator was the knowledge of the defendant, and bound it, and made it liable. The charge of the judge at the circuit was correct, and asserts the only practical rule that can be applied in such cases. Order granting a new trial reversed, and new trial denied, with costs. Chapman, Adm'x, v. Erie Railroad Co. Opinion by Smith, J.

PRACTICE.

1. Forcible entry and detainer.- Where, in an action to review proceedings for a forcible entry and detainer, before the county judge, the counsel for the defendant objects to the complaint, on the ground "that it was insufficiently verified to constitute an affidavit within the meaning of the statute, it being sworn to upon information and belief," and the objection was overruled by the judge, and the defendant duly excepted, and immediately thereafter the jury was impaneled and the investigation proceeded, and the inquisition was found and signed, and immediately thereafter the relator traversed it and brought the certiorari soon after, and before other proceedings were had. Held, that the statute in respect to "forcible entries and

case

detainers," 2d Rev. Stat. 508, requires that to "institute these proceedings before a judge a complaint shall be made; and section 3 declares, "that such complaint shall be in writing, and accompanied by an affidavit of such forcible entry or forcible holding." The making and presentation of such complaint are essential to give the judge jurisdiction. The complaint in this was sufficient, but no affidavit was made to accompany it. The affidavit should be positive and state facts positively, or, if founded on information and belief, should give the source of such information and belief. The form of verification prescribed by the Code does not necessarily imply that the facts in the pleading are true, and a complaint without an affidavit is not a compliance with the statute. People ex rel. Decker v. Whitney. Opinion by E. D. Smith, J.

2. That the proceedings subsequent to the objection, if the impaneling of the jury, the finding of the inquisition and the traverse were no waiver of the objection, such traverse must, under section 14 of the statute, be made within 24 hours after the inquisition was found to stay the proceedings, and it would be unreasonable to require the defendant to make out the necessary.papers and move for a certiorari within that time, or submit to the temporary deprivation of his property. Ib.

3. As these proceedings are summary and statutory they must strictly conform to the statute, and are open to technical objections. Proceedings reversed. Ib.

RECEIVER.

Receiver's bond.- Where the plaintiff was appointed a receiver in supplement proceedings and required by the order appointing him to execute a bond with sureties, and executed an obligation, not under seal, with one surety, and brought an action as receiver, and it was objected that such bond was not a compliance with the order appointing him, and the judge sustained the objection and directed a nonsuit. On appeal, held, that the appointment of a receiver is perfected by the filing of the order for his appointment, with the report of the referee and the security required by such order and report. The order required the execution of a bond with sureties. No title passed to the receiver until compliance with the order. Two sureties at least were required by the order, and that is the usual number unless the court dispenses with one. 2. A bond is an obligation under seal and nothing else is one, and a bond was required in this case. Judgment affirmed. Johnson, receiver, etc., v. Martin. Opinion by E. D. Smith, J.

TRESPASS.

Taxation: public officer.- Where, in an action for trespass for taking plaintiff's wood by defendant, as collector of school taxes, defendant justifies as such collector, and plaintiff was the owner of real estate in said school district, but resided without it, and on judgment before a justice of the peace, in favor of defendants, a new trial was had in the county court, and the judgment affirmed, from which judgment an appeal was taken to this court. Held, that under § 66, Laws of New York of 1864, p. 125, as amended by § 17, Laws of 1867, "providing that the trustees shall apportion the tax on all the taxable inhabitants of said district and upon corporations and persons holding property therein," the plaintiff was liable. Judgment affirmed. Tiffany v. Farr. Opinion by E. D. Smith, J.

PRINCIPAL AND AGENT

SUPREME COURT- FIRST DEPARTMENT, GENERAL

TERM.

GELPECKE et al. v. QUENTELL.

Duties of agents to third parties after revocation of his authority.

Exceptions directed to be heard in the first instance at General Term.

DAVIS, J.-When this case was here before, the only question presented arose upon the construction to be given to the following clauses of defendant's letter of 24th Dec., 1859:

"This credit is intended for advances on consignments of merchandise to my address, and you will please keep the same in force for the coming year, 1860. It is not, however, required that bills of lading accompany the advice of the drafts." The court held that the latter of these clauses operated to dispense with the necessity of the bills of lading accompanying the drafts, and thereby relieved the plaintiffs from the duty of inquiring whether drafts presented to them were, in fact, drawn against consignments of merchandise to defendant's address.

On that trial the court "required that the plaintiffs should first prove that the several bills were actually drawn against shipments consigned to the defendant," and, plaintiffs not having given such proof, their complaint was dismissed. See case reported, 59 Barb. 250, 252.

That decision fully, and, as we think, correctly, settles the law of the case upon the question there presented. Upon the trial of the case now under review it appears that, on the 18th of January, 1860, the defendant wrote to the plaintiffs from Bremen a letter, recalling his former letter of credit and revoking the authority of the plaintiffs to accept the drafts of Rodewald & Co., and requesting plaintiffs to communicate to Rodewald & Co. the revocation. This letter contained the following clause: "If, however, in the mean time, up to the arrival of this letter, acceptances should have been made against it, this, as a matter of course, is for my account, and your drafts for re-imbursement will be promptly honored on my part."

The letter of revocation was received, it appears, on the morning of the 6th of February, 1860, and, on the same day, the plaintiffs wrote to Rodewald & Co., informing them that, according to instructions that morning received from defendant, the credit opened in their favor had been recalled, and was, therefore, canceled. This letter was sent on the same day, by mail, to New Orleans.

None of the drafts in suit had, at that time, been accepted by the plaintiffs. On the 8th of February a draft of $3,000, drawn at New Orleans on the 1st of February, was presented and accepted. On the 10th of February drafts for $5,000, drawn on the 4th of February, were presented and accepted, and on the 13th of February five drafts of $5,000 each, drawn on the 7th of February, were presented and accepted. The several acceptances were paid at maturity by plaintiffs, and the defendant refused to refund plaintiffs, on the ground that the acceptances were made after the revocation of their authority.

The recall of the letter of credit, and consequent revocation of the authority of plaintiffs to accept, was complete on the 6th day of February, at which time the letter of defendant, written for that express pur

pose, was received. An acceptance subsequent to such
revocation cannot stand alone upon the revoked
authority, but must have connected with it such ex-
traneous circumstances as show that plaintiffs had the
right to charge defendant by their acceptance, not-
withstanding his recall of the letter of credit. When
called upon to respond, the defendant had a right to
say, your acceptances were made after I had revoked
your power, and to this there could be but one an-
swer: "We were bound to accept because we had put
ourselves, in pursuance of your letter and directions,
in a position which was, in law, equivalent to an accept-❘
ance, or which would subject us to damages for refus-
ing to accept." If the plaintiffs established this position
their right to be made good by defendant is clear; but
it is one upon which, in my judgment, the plaintiffs
hold the affirmative. They assert a right to exercise
an authority after the revocation, and must show the
facts which justify the assertion.

To do this it was necessary to establish that what had taken place between themselves and Rodewald & Co. was of such a character that parties who had received the drafts of the latter firm upon plaintiffs had a legal right to insist upon an acceptance, or to sue as upon an acceptance, or for damages for non-acceptance. In short, it was their duty to be able to show that, notwithstanding the revocation, their relations of legal liability to the holders of the several drafts in question were such that the subsequent acceptance was equivalent in its operation on the obligation of the defendant toward them to one made before the recall of authority. The court erred in holding that the plaintiffs were not bound to show that state of facts, but, as this case is presented, we may properly look at all the facts proved or conceded, to see whether upon them sufficient appeared to justify the recovery.

It was shown that after receiving the letter of defendant by which the credit to be drawn against was created in which the defendant indicated that the drafts were to be drawn against consignments of merchandise, but relieved the plaintiffs, as the court has held, from the duty of inquiring whether drafts presented under the authority had been so drawn, the plaintiffs wrote to Rodewald & Co., advising them of the credit. This letter is as follows:

NEW YORK, 17th January, 1860. Messrs. HENRY RODEWALD & Co., New Orleans, La. We hereby have the pleasure to inform you that our mutual friend, Wm. Ed. Quentell, Esq., of Bremen, has opened a credit with us in your favor, for the sum of $50,000-say fifty thousand dollars, to be used by your drafts, sixty days sight, against shipments of consignments to the address of said friend. In confirming this credit, we hope you may have soon occasion to make use of it. Your drafts will meet with prompt protection.

Meanwhile, we are, gentlemen,

Yours, respectfully,

GELPECKE, KENTGEN & REICHELT.

This letter, so far as the case discloses, contains the only authority conferred by plaintiffs on Rodewald & Co. to make the drafts in question, and in it is to be found the only obligations of the plaintiffs, express or implied, which Rodewald & Co., as drawers, could communicate to parties purchasing or receiving their drafts, and upon which the latter could claim to base a promise to accept, enforceable against plaintiffs. It is essential, therefore, clearly to understand what drafts

drawn under this letter would fall within the plaintiff's promise to accept, which the law will find in this letter or imply from its contents. It is apparent, as it seems to me, that they must be drafts at sixty days sight, and must be against shipments of consignments to the address of defendant. We are seeking now for the promise of plaintiffs made to Rodewald & Co., and upon which the holding a draft drawn by that firm may stand to enforce it against plaintiffs, because of the promise asserting that he received it in reliance upon the promise, and therefore may legally claim acceptance.

One who was simply told by Rodewald & Co. that they had the authority to draw may, perhaps, claim the benefit of whatever promise the actual authority contained, although he did not in fact see it, but can he claim any more than the authority would have disclosed to him if shown to and read by him? The holder of the drafts must be deemed to have seen and acted upon the letter for their waiver, or neglect to see it, cannot interject another promise than there actually contained in or implied from it. When Rodewald & Co. drew the drafts for $25,000, which it appears in the case were made to pay a like amount of their own previously dishonored drafts upon other parties in favor of the person to whom these were delivered, nothing more could be claimed by that drawee as against plaintiffs, than that he saw and acted in full reliance on this letter to his drawers. He must therefore be held to have seen that the promise of plaintiffs to Rodewald & Co., was to honor drafts drawn "againts shipments of consignments to the address" of defendant, and he must be held to have known that his dishonored paper was not a shipment of that character. If the plaintiffs had refused to accept those drafts, I can conceive of no ground upon which the holder could have maintained his action under the statute. He had notice that the drafts were not drawn within the instructions given by plaintiffs.

The question now before us is not the one that would have arisen had the drafts been accepted by the plaintiffs prior to the revocation of the letter of credit. In that case the plaintiffs, acting in good faith, could say, as before held by this court, that they were not bound to inquire whether the drafts were drawn against consignments of merchandise to defendant's address, because he had himself waived that duty. But an acceptance, after the authority itself had been revoked, must stand, upon the ground of plaintiffs' personal liability created by the authority with which they armed the drawees in New Orleans. I see no good reason why the plaintiffs might not have required the drafts to be drawn against consignments of merchandise to defendant, although he did not require them to have bills of lading accompany the drafts; nor why they might not refuse any draft not so drawn, because not within their instructions to Rodewald & Co. The waiver of accompanying bills of lading was a personal matter between plaintiffs and defendant. It would not have justified the acceptance of a draft known to plaintiffs not to be drawn against consignments. Good faith was still required, although acceptances in good faith without certain evidences of the character of the draft were to bind defendant. Hence, there can be no sound reason, as it seems to me, why plaintiffs could not limit their obligation to accept to the very kind of drafts which the defendant advised them he contemplated, by requiring the drafts which they would accept to be against consignments. And when the

« ΠροηγούμενηΣυνέχεια »