J. S. Lockwood & Manning v. Brownson

Gould, Associate Justice. The letter of credit or written contract on which Brownson brings this suit, was, we think, correctly construed by him, as making it “a condition that H. E. Drum & Bro. should draw in favor of J. S. Lockwood & Manning on Buchanan & Co., to cover any drafts which H. E. Drum & Bro. might' draw upon Lockwood & Manning.” Bead in the light of the surrounding circumstances, we think the letter showed that compliance with this condition was in the nature of a condition precedent to the obligation to pay. The conditional promise was not more binding than a conditional acceptance of a bill of exchange. See 1 Parsons on Bills and Notes, pp. 297, 302-304; 1 Daniels on Neg. Inst., secs. 508-9 et seq.; Byles on Bills, p. 242 [150]. But certainly there is nothing in the letter to indicate that a draft payable, not at sight, but at twenty days after sight, would be received as covering sight drafts on Lockwood & Manning; and the oral testimony, instead of showing such an understanding, shows the contrary. So far as the evidence discloses, Brownson had no right to assume “ that the twenty days after sight draft which Drum & Bro. drew on Buchanan & Co. in favor of Lockwood & Manning, and which was mailed to Lockwood & Manning, was a draft which covered the draft bought by him.” Hnder the evidence, the plaintiff showed no right of action on the contract sued on, and the judgment of the court should have been for defendants.. It is to be remarked that the petition was defective in failing to [527] aver performance of the condition. The court, however, overruled the exception to the petition, and gave judgment for the plaintiff. As it is possible, if the court had ruled differently, the plaintiff might have amended, showing a cause of action outside of the letter, or have adduced other evidence in support of his right to recover under the letter,—it is deemed proper to remand the case in order to give him an opportunity to do so, if he can. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered June 22, 1880.]