Savannah National Bank v. Haskins

Colt, J. The plaintiffs seek to enforce payment of certain drafts, drawn by Paterson upon the defendants, which, by their letter of credit containing an express promise to the plaintiffs, the defendants were bound on presentment to accept and pay. The drafts were discounted by the plaintiffs, sent on by mail for acceptance, and lost in course of transmission without fault of the plaintiffs. The death of the drawer made it imposssible to procure duplicates. The bill offers indemnity such as the court may order, and an affidavit of loss is annexed. Considering the defendants’ letter of credit as a promise to accept and pay, made upon the commercial condition of presentment and surrender of the drafts, a case is stated, where, without fault, the plaintiffs have been deprived of the power to comply with the condition. And a majority of the court are of opinion that it comes within that relief which courts of equity administer in cases where recovery at law is precluded by reason of the loss of a written instrument, to the possession of which the defendant is, by the terms of his contract, entitled upon the performance of his promise. [375] This jurisdiction in equity is most commonly referred to the head of accident. And an accident, when arising in relation to contracts, has been defined, in the sense used in a court of equity, to be an occurrence which was not anticipated by the parties when the contract was entered into, and which gives an undue advantage to one of them over the other in a court of iaw. 1 Story Eq. §§ 79 note, 86, 87. Hansard v. Robinson, 7 B. & C. 90. East India Co. v. Boddum, 9 Ves. 468. Adams Eq. 166. The contract of an acceptor of a bill of exchange is, that he will pay upon presentment of the identical bill. He has the right to insist upon the condition. And yet the power of a court of equity to compel payment without it, upon suitable indemnity, is well recognized in England. In Davies v. Dodd, 4 Price, 176, a remedy was afforded against an accommodation acceptor of a lost bill, to compel payment, and it was said that the plaintiff’s equity was founded in the want of power in courts of law to regulate the security to be given to the defendant against the forthcoming bill. McCartrey v. Graham, 2 Sim. 286, was a bill to enforce payment of the defendant’s acceptance, brought by the last of several indorsers. It contained an offer of indemnity against the draft, which was stolen from the mail coach in the course of its transmission. The demurrer, which was for want of equity and want of parties, was overruled ; the vice-chancellor remarking that the objection for want of parties would not avail, because the acceptor, being primarily liable, by paying the bill discharges the other parties from all liability. In Hansard v. Robinson, ubi supra, Lord Tenterden declared that the plai itiff, though he could not prevail in law against the acceptor of a lost bill, was not without remedy, for he c*mid enforce payment in equity. Davis v. Dodd, 4 Taunt. 602. 2 Parsons on Notes & Bills, 297 note. Story on Bills, § 447. In the case at bar, assuming that the defendants’ letter of credit is not, under the decisions, to be regarded as an acceptance, yet it was a contract with the plaintiffs subject to precisely similar conditions, upon the strength of which the bank discounted the draft in question. It comes fairly within the prin [376] ciple upon which relief is afforded, and cannot in this respect be distinguished from an actual acceptance. Carnegie v. Morrison, 2 Met. 381. If the defendant is reasonably indemnified from harm, he has no reason in either case to refuse payment. The demurrer in this case cannot be sustained on the ground that there is adequate relief at law. Under the earlier decisions of this court, and before full equity powers were conferred, it was held that a recovery at law might be had upon a lost note, the plaintiff giving a bond of indemnity. It is not clear, even under the pressure created by the sense of injustice which would ensue to the plaintiff if left without remedy in such cases, that the court intended to decide that a recovery could be had in all cases against an indorser or acceptor upon giving a simple bond of indemnity. There is now full equity jurisdiction ; and, since the late case of Tuttle v. Standish, 4 Allen, 482, in which this whole subject is thoroughly reviewed, it can no longer be contended that a recovery at law can be had against an acceptor or indorser, upon a simple bond protecting the defendant from being called on to pay a second time to a bond fide holder. The acceptor of a bill of exchange not only has a right to such protection, but he has a right to have the bill surrendered to him on its payment, to be used as a voucher in his settlement with the drawer. The remedy afforded by a court of equity in such cases is ap propriate and complete. Without embarrassment from the tech nicol rules which control the administration of courts of law. it adapts its decrees and process to the circumstances ot each case as it arises. In all cases where, by the accidental loss of the note or bill, the plaintiff cannot comply with the defendant’s right under his contract to have the identical instrument surrendered, and it is within the power of the court to secure the defendant from all appreciable injury, relief will be decreed to the plaintiff in equity, upon terms and conditions which will secure and protect the rights of all. And it can make no difference in principle whether the defendant’s contract is an acceptance or only a promise to accept. [377] It is urged in support of the demurrer, that it is not in the power of the court so to frame its decree as to leave the defendants, after payment, in as good condition with respect to their claim upon the drawer as if placed in possession of the drafts; that the burden of establishing the claim upon a third party without vouchers cannot be imposed upon them as a result of the misfortune of the plaintiffs. In reply to this, it is sufficient that, in the present stage of the case, it does not appear that all the defendants’ rights may not be fully secured. That will depend upon future developments. It may be shown at the hearing, that the defendants were at the time, or have since been, placed in funds by the drawer to meet these drafts. The plaintiffs may produce a release from the drawer, or his present legal representatives, dispensing with the production of them as vouchers in settlement with the estate. Or it may in some other way be made to appear that a bond of indemnity with the usual condition, and the further provision that no cost, expense or damage shall be suffered by the defendants in their relation to the drawer or his estate by reason of the payment of the drafts, will be found ample to preserve all their rights. The nature of the security to be required can only be determined upon a hearing on the merits. It is further contended that, if the plaintiffs have any remedy, it is complete at law, because the drafts were specially indorsed. If the fact were as urged, it would for the reasons above stated seem to be no ground for excluding equity jurisdiction. But, as we understand the facts, the drafts were originally indorsed in blank, and were only restricted by the plaintiffs’ indorsement This does not prevent them from passing by delivery, because any holder may fill up the blank indorsement directly to himself. Smith v. Clarke, Peake, 225. Demurrer overruled.