Bank of America v. Whitney-Central Nat. Bank

BRYAN, Circuit Judge. These are writs of error, sued out by the Bank of America, plaintiff, to judgments in favor of the Whitney-Central National Bank, defendant. The two suits, each based upon a letter of credit issued by the defendant, were consolidated for trial, and will be disposed of here in one opinion. April 16, 1920, Ham & Seymour, partners and brokers doing business in New Orleans and New York, and John Barkley & Co., Limited, of New Orleans, entered into the following contract: “New Orleans, April 16, 1920. “John Barkley & Co., Limited, City—Dear Sirs: We have this day sold you 500 tons Java white sugar to be shipped 50 tons during July, 135 tons during July-August, 315 tons during August-September, at a price of 22 cents per pound delivered New York City; terms, net cash on presentation of custom house permit and delivery order based on net landed weights at New York. It is understood that you will arrange at once a banker's credit to provide for payment as above, and you will therefore please arrange such a credit in favor of Ham & Seymour, 102 Wall street, New York, for $246,400, to be paid to them in exchange for the above-mentioned documents. “Yours truly, Ham & Seymour. ' “Accepted: John Barkley & Co., Limited, “Henderson Barkley, Treas.” On the next day another contract identical in terms was entered into by the same parties. April 17 the defendant issued two letters of credit, identical in all respects, except that one is numbered 4333 and the other 4334. These letters of credit were issued upon printed forms, on which certain words and lines were stricken out, and certain interlineations made. ' The forms were filled out in typewriting. Letter of credit No. 4333 is as follows (the typewritten matter being in italics): “Letter of Credit .No. 4333. “Whitney-Central National Bank, of New Orleans, La. “New Orleans, La. April 17, 1980. “Messrs. Ham é Seymour, hew York,N. Y.—Dear Sirs: We hereby authorize you to value on the Whitney-Central National Bank, New Orleans, at sight, payable at the Hanover National Bank,. New York not exceeding in the aggregate two hundred and forty-sir thousand four hundred dollars, to be used by you for invoice cost of 500 tons Java white sugar at 884 per lb. duty paid, to be purchased for account of Messrs. Jolm Barkley & Co., Ltd., New Or — 933 — leans, or whom it may concern, and to be shipped to New York, 50 tons July, 1920, 135 tons July, August, 1920, 315 tons August, September, 1920. The drafts must be drawn and Bille-of--Ladmg' dated in New York, prior to the 15th day of Dee. 19.20, and advice thereof given by you in original and dupli- custom house permit & delivery order cate, such advice to be accompanied by -bai-oL lading- filled up to the order of the Whitney-Central National Bank, New Orleans with abstract of invoice endorsed thereon, or a copy of invoice accompanying the said bill of lading for the property shipped as above, ah the-bsilo-ei-lading icsuodi ■sssept-ono to bo mailed to-us and-eae-setaiiied by the-Sa-ptaln of tho-vessei properl-y certified by the United -Etateo-Oonoul, to bo forwa-rded-to-ag;. ■ And we hereby agree with the drawers, indorsers, and bona fide holders of bills drawn in compliance with the terms of this credit, that the same shall be .duly honored on presentation at the office of the Whitney-Central National Bank, i/ew Orleans. “$246,400.00. “We are, dear sirs, “Whitney-Central National Bank, Foreign Exchange Department, “[Signed] Boyal B. Bastain, Manager. ' “N. B.—Drafts must state on their face that they are drawn under Whitney-Central National Bank credit. “No. 4333. dated April 17, 1920. “Insurance by seller.” April 16 Ham & Seymour bought from the E. R. Sherburne Company 1,000 tons of white Java sugar, to be shipped at the times and delivered in the quantities specified in their contract with Barkley & Co., and April 22, in order to secure payment therefor, deposited defendant’s letters of credit as collateral security with the Bank of America and procured its letter of credit for their account in favor of the Sherburne Company. Objection was raised by the Sherburne Company to the terms of plaintiff’s letter of credit, and on April 26 Ham & Seymour wrote to Barkley & Co. a letter which states: “In accordance with our promise to do our utmost to take care of your Java’ sugar in New' York, we beg to advise that we expect to arrange to get delivery to you there in warehouse, instead of on the docks, where demur-rage from failure to get lighters might accrue, and for this purpose we ask that you obtain from your bankers an amendment to the credit they provided for you as follows: ‘Payment shall be made in cash or by sight draft against presentation of custom house permit and/or warehouse receipts (duty paid) and delivery order,’ ” —and April 28 received from the defendant the following letter: “Beferring to letters of credit Nos. 4333 and 4334, issued in your favor for account of John Barkley & Co., Limited, for $246,400 each: By request of Messrs. John Barkley & Co., we beg to advise you that the above credits have been amended to read: ‘Payment shall be made ia cash or by sight draft against presentation of custom house permit and/or warehouse receipt (duty paid) and delivery order.’ ” May 3 the plaintiff amended its letter of credit in a manner accept-* able to the Sherburne Company, and thereafter paid drafts for the full amount authorized by the said letter as amended. As.it paid each such draft it accepted from Ham & Seymour their drafts payable to its order upon the defendant, and demanded payment both at New York and New Orleans. The defendant refused payment upon the principal ground that the documents attached were “not in order.” — 934 — It refused to specify wherein any document failed to comply with its letters of credit. The plaintiff caused to be sold the sugar it received on its letter of credit and sues for the difference between the amount realized on resale and the aggregate amount of the drafts it received from Ham & Seymour. It has not received any additional payments upon its own letter of cre'dit. The drafts upon the defendant were presented in pairs, and there were three presentations under each of the two letters of credit. Unless otherwise indicated, reference will be made to only one of each pair of drafts and documents. Each draft was accompanied by a letter of advice in duplicate, Ham 6 Seymour’s commercial invoice and abstract thereof, custom house permit, delivery order, and insurance certificate or policy. The first three of these documents show shipments of the full quantity of sugar of the kind required, within the times prescribed, and at the prices named in the letters of credit. The drafts upon each presentation were for the full amounts authorized. The first pair of drafts were presented October 19 in New York, and October 28 in New Orleans; the second pair were presented November 11 in New York, and December 7 in New Orleans; and the third pair were presented December 13 in New York, and December 15 in New Orleans. The custom house permits show the arrival in New York of the steamships Karimoen on October Í1, Enggano on November 3, and Texas Maru on December 7, with consignments of sugar. Before the first presentation of drafts and documents was made, Ham & Seymour wrote to Barkley & Co. that a copy of the bill of lading, although not stipulated for, would be presented, because it was considered that Barkley & Co. were entitled to proof regarding the actual date of shipment. A copy of the bill of lading covering the first shipment accompanied the drafts, and is dated July 31, 1920, and covers sugar to be shipped by the Karimoen. It recites that four bills of lading had been issued, including one copy for the captain, and was executed by an agent of the company “per pro” the - captain. Custom house certificates attached to the two other sets of drafts show that the .Enggano bill of lading was issued in August, 1920, and the Texas Maru bill of lading in September, 1920. The first presentation of drafts and documents was for sugar which arrived on the Karimoen. The plaintiff tendered a custom house permit in which the sugar was described as “refined granulated sugar, test 96o.” A notation was made on this permit that the sugar was for local consumption and not for refinery. Direction to the storekeeper to release the goods was duly executed, and the storekeeper’s return on the back of the permit is to the effect that the goods were delivered October 21, 1920; but the evidence shows without conflict that this entry by the storekeeper had not been made when the documents were presented at New Orleans. The ’custom house withdrawal describes the sugar as containing 111,525 pounds, and shows that the rate of duty was 1.36 cents per pound. Minford, Eueder & Co. appear as importers, and signed the withdrawal, but did not fill in the name of the party to whom delivery should be made. The delivery order is signed by W. R. Bassett, as attorney for the Sherburne Company. In — 935 — the lower left-hand corner are printed the words, “To be weighed by Geo. J. Hoffmann & Co., N. Y; City.” The invoice and letter of credit call for “50 tons, 500 bags, Java white sugar, say 112,000 pounds.” The insurance certificates furnished describe “50 tons sugar.” • The second presentátion was for sugar which arrived on the steamship Enggano. The custom house permit described it simply as “sugar,” but it was accompanied by a certificate from an assistant deputy collector of customs that the sugar described in the permit was “Java white sugar, and that the duty had been paid thereon on the estimated basis of approximately 223 pounds to the bag.” The Bankers’ Trust Company was named in this permit as importer, and it executed a delivery order on the Pouch Terminal Stores for 1,350 out of a lot of 2,700 bags of Java white sugar. The draft, invoice, and letter of advice were signed per pro. Ham & Seymour, by E. B. Wilson, attorney. An insurance policy in favor of the defendant was also attached. The third presentation was for sugar which arrived on .the Texas Maru. The custom house permit described the merchandise as “superior white Java sugar,” but did not designate its weight. However, a certificate from the deputy collector of customs states that the bill of lading calls for 10,043 bags, estimated to weigh an average of 218.66 pounds to the bag. The Old Colony Trust Company appears as- importer. The delivery order purports to emanate from it, and was signed by J. J. Sweeney, “for Manager Foreign Department.” The draft, invoice, and letter of advice were,signed per pro. Ham & Seymour, by E. B. Wilson, attorney. The insurance was in the form’of certificates, and did not cover war risk, theft, or goods while in warehouse. ' When the plaintiff rested, the District Judge, being of opinion that the evidence failed to show shipments at the times required by the letters of credit, directed a verdict and entered judgment thereon for the defendant. A bank may issue its letter of credit unconditionally, and without requiring documents, or it may prescribe such conditions and require such documents as it sees fit. Border National Bank v. American National Bank (C. C. A.) 282 Fed. 73. It follows that when any particular fact is not required to be represented by documents the letter of credit is unconditional as to such fact, and in that event the issuing bank is presumed to rely upon the representation of the person in whose favor the credit is issued. But of course it is unnecessary to enumerate or specify in detail facts which it is the office or function of a required document to disclose; for then such facts are called for by the act of requiring such document. The defendant contends at the outset that its letters of credit require the presentation of copies of consular invoices, and are not susceptible of the construction that the commercial invoices of Ham & Seymour would be recognized. Undoubtedly the printed form used was prepared for import letters of credit. The contention arises out of the attempt to adapt that form to meet the present situation, where one broker was purchasing from another broker portions of consignments of imported goods, and where neither of them was the importer. Barkley & Co. were not entitled to have possession of the bills of — 936 — lading, or the consular invoices, and it was doubtless for.this reason ■that the requirements for these documents were stricken out, and custom house permits or warehouse receipts substituted. The purpose of requiring bills of lading and consular invoices is to enable the bank that issues its letter of credit to ascertain whether the copies which accompany the drafts correspond with the originals; but, without orig.iqals, copies serve no useful purpose. The words “invoice cost” in the .'letters of credit clearly refer to the commercial invoice of Ham & Seymour, because the price to be received by them, and not by the importer, is given. The subsequent requirement, that an abstract of invoice ’ be indorsed on the custom house permit or delivery order, appears ¡without anything to indicate a change in the kind of invoice. It is true that the provision “or a copy of invoice accompanying the said .bill of lading,” upon the form used, has reference to a copy of the consular invoice. But that provision is in the alternative, and is fairly open to the contention that it was left in inadvertently, or at least that it was intended to strike out of it the words “the said bill of lading,” .and to substitute the words “custom house permit and delivery-order,” ■.as was done elsewhere. The amendments to the letters of credit, which , authorize the use of warehouse receipts, instead of custom house permits, tend strongly to clear up any ambiguity. Upon consideration of the changes in the printed forms, the reasons for making them, and the amendments, we are of opinion that neither abstracts nor copies of consular invoices were required. ^ It is also argued that it was an essential requirement that sugar should be bought without the United States and imported for the account of Barkley & Co., in order to avoid compliance with the regulations of the Federal Food Administration allowing only nominal profits, in supposed compliance with the Federal Control Act of August 10, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, '§ 31l5%a et seq.), and to enable Barkley & Co. to sell at a substantial profit. A suf- ; ficient reply to this argument is that the letters of credit do not require ■ purchase abroad, and that title to the sugar was not to pass to Barkley & Co. until after it was imported. The drafts were accompanied by all the documents required by ■the letters of credit. The defendant insists, although there is no specific requirement to that effect, that.it was essential for documents, other than those which originated with Ham & Seymour, to show the dates of shipment, contain a description in the language of the letters of .credit, and give the weight, of the sugar. Consular invoices, even if they had been required, need not have furnished information as to dates of shipment, because such invoices may be prepared and executed .before shipment. 38 Stat. 181. Bills of lading, which also might have shown when the shipments were made, were not required. Therefore it follows that the defendant must be presumed to have relied upon • the representations of Ham & Seymour as to the dates when the goods were shipped. Ham & Seymour’s letter to Barkley & Co., that bills of lading .or copies thereof would be furnished, does not bind the plaintiff, in the absence of proof -of its consent or knowledge that such offer had •.been made. Furthermore, the bill of lading for the first consignment, — 937 — and the certificates for the other two consignments, contain dates within the times prescribed. If it be conceded that the bills of lading do not affirmatively show the dates upon which the shipments were made, yet they do not show to the contrary, and are consistent with the invoices and letters of advice, which do affirmatively show shipments within the times required. It is the function of a custom house permit to contain a description of goods, and especially of sugar upon which ad valorem customs duties are imposed. R. S. § 2870 (Comp. St. § 5558). But such description need not, in the absence of a specific requirement to that effect, be in the language of the letters of credit. Neither Ham & Seymour nor the plaintiff could compel the customs officials to describe the sugar in the language of the letters of credit. The amendments authorize ■ the substitution of warehouse receipts, which would not ordinarily give a detailed or accurate description; and while it is true that warehouse receipts were not in fact used, yet the right to use them was given by the amendments, and the intention of the parties as to the description which should be furnished is to be arrived at, not from what was actually done, but from what those holding and acting under the letters of credit had a right to do. We think, therefore, it is sufficient that the invoices and letters of advice emanating from Ham & Seymour contain a correct description of the sugar. There was no document required whose function it was to show the weights, except the documents which were the representations of Ham & Seymour. A custom house permit is not required to show the weight of merchandise. R. S. '§ 2870. The weights given in the warehouse withdrawal, in the certificates, and in the bills of lading are all estimated, and do not contradict the invoices, letters of advice, or delivery orders. Unless the contrary be clearly shown, it is to be presumed that the defendant relied upon the representations of Ham & Seymour with respect to any small deficiencies in weights, and that credit would be extended to them if the drafts were slightly excessive under such circumstances. In our opinion, the defendant is not now justified in its refusal' of payment, because delivery orders were signed by Bassett on behalf of the Sherburne Company upon the Karimoen presentation, and by Sweeney on behalf of the Old Colony Trust Company upon the Texas Maru presentation, nor because the drafts, invoices and letters of advice were signed per pro. Ham & Seymour by E. B. Wilson, attorney, upon both the Enggano and the Texas Maru presentations. If failure to object to signatures to documents would not in any case constitute a waiver, it seems clear it does where, as here, the refusal is based upon another ground, which related, not to the manner of execution, but to the documents themselves. Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693. Each of the three presentations will now be considered separately. Karimoen Presentation. The custom house permit shows that duty was paid upon the highest grade of sugar. 38 Stat. 114, § 177. It does not contradict the invoice. It was not within the power of the customs officials to place — 938 — a limitation upon the use of the sugar, and the attempt to do so could safely be ignored. The defendant contends that the delivery order should have been -signed by Ham & Seymour, and not by the Sherburne Company. According to the evidence, Ham & Seymour bought the sugar from the Sherburne Company, who in fact doubtless had the right to sign the delivery order, which was accompanied by a blank'withdrawal order signed by the importer. At any rate, Ham '& Seymour adopted the delivery order by attaching it to their draft. The printed legend, that the sugar was to be weighed by Hoffmann, was no part of the delivery order, and could not prevent delivery of the goods. It does not indicate that the goods had not been weighed. The expression, “50 tons, * * * say 112,000 pounds,” is not difficult to understand. It can only mean that the tons, and pounds named are equivalents. The insurance certificates cover sugar from the Karimoen. The description is sufficient to protect the goods insured. Enggano Presentation. The second set of drafts and documents relate to the shipment by the Enggano, which arrived in New York on November 3. The New York presentation was made on November 10, and that in New Orleans on December 7. The evidence relating to the contents of the documents presented at New York has not been stated, for the reason that some of the objections urged against the New York pres- . entation do not apply to the New Orleans presentation. The delay after the arrival of the goods was not unreasonable. It had become perfectly evident that because of the decline in the price of sugar the defendant intended to refuse payment of the drafts, if in its opinion it was possible legally to do so. It declined to point out any defects in the papers, and stood upon the indefinite statement that the documents were “not in order.” The plaintiff was not entitled to the documents which the defendant now claims should have been presented, but in order to meet every possible objection it proceeded to procure certificates of bills of lading, new delivery orders, and other documents. We are of opinion that the certificates should be treated as a part of the permit. Both were issued by the same official, who could have written upon the permit everything that is contained in the certificate. The description of the sugar in the certificate complies with the letter of credit. It is not made to appear that the drafts were excessive by the circumstance that the estimated weight given in the certificate is one pound less per bag than that shown by the invoice and delivery order and reflected in the amount of each draft. As already held, a custom house permit is not required to show the weight of merchandise, and a delivery order is sufficient which merely identifies by marks or otherwise goods described in the permit. Permits authorizing the release of goods upon which the duty has not been paid are frequently issued, and authority to do so is given to customs officers by statute; upon bond being given to secure any unpaid duty. R. S. § 2899 (Comp. St. '§ 5589). When a permit is issued, the goods in contemplation of law are no longer in the possession of the customs authorities, and the purchaser is entitled to take them free of lien, — 939 — though the duty has not been paid. It was not required that delivery orders should emanate from Ham & Seymour, and it was entirely proper that such orders should be given by the parties entitled to possession, as shown by documents other than those signed by Ham & Seymour. While the delivery orders show that the goods had gone into a warehouse, it does not appear that negotiable warehouse certificates had been issued, and, unless they had been, under the laws of New York, a person with written authority is entitled to delivery. N. Y. Consolidated Laws (1909) c. 25, § 96. It would make no difference if the two lots of sugar had not been segregated, because the two orders call for the entire lot. Each permit called for 1,350 out of 5,019 bags. Although it may be true that the duty had not been paid on the entire lot, yet it is not to be supposed that the government would issue permits and refuse to deliver the goods called for by them. Besides, one presenting the permits would be entitled to take the bags upon which the duty had been paid. It further appears that the delivery orders refer only to the 2,700 bags which had passed out of the possession of the customs authorities and were then stored-in a warehouse. Each insurance policy describes 1,350 bags of “Java white sugar,” and is therefore sufficiently specific. Texas Maru Presentation. The third set of drafts and documents relate to the shipment by the Texas Maru. The description “superior white Java sugar” in the permit substantially complies with the description “Java white sugar” in the letters of credit, and the discrepancy is unimportant. Both the noun adjective “Java” and the descriptive adjective “white” qualify the noun “sugar.” A transposition of these adjectives does not indicate a different kind or grade. The weight in the bill of lading certificate purports to be an estimate, and does not contradict the invoice or delivery order. The permit was not filled up to the order of the defendant, but it could not have been. A permit only authorizes the government’s storekeeper to release the goods, and signifies nothing, except that the duty has been paid or secured by bond. Therefore the letters-of credit are to be construed as requiring only the delivery order to be filled up to defendant’s order. Only such insurance as would be usual under the circumstances was required. It was not necessary to tender insurance covering war risk and theft. The war was over, the sea voyage at ah end, and the carrier would have been responsible in case of theft. There was nothing to indicate that the goods had passed from the ship’s dock to a warehouse. The conclusion is that, under the evidence submitted, the documents presented complied with the requirements of the letters of credit, and therefore were in order. The judgments are reversed, with directions for further proceedings not inconsistent with this opinion.