140 N.E. 211 | NY | 1923
By telegram addressed to the Bank of Italy at San Francisco, the Merchants National Bank of Dunkirk guaranteed payment for two carloads of "dried grapes" bought by local merchants of one Rossi, stating that "payment will be made on presentation original bill lading here." Thereupon Rossi presented to the respondent bills of lading for two carloads of "raisins" consigned to the purchaser and the bank advanced upon them some $22,000. In due course these bills of lading were then presented to the appellant for payment but payment was refused. The sole question before us is whether such refusal was justified because the bills of lading were for "raisins" and not for "dried grapes." We hold that it was.
In making such a guaranty as the present the Merchants National Bank might limit its liability to such an extent and subject it to such conditions as it thought wise. It is to be held upon the contract which it elected to make — not upon some different contract which it might have made or which the jury thinks it should have made. (Evansville National Bank v. Kaufmann,
As we have seen in the case before us, the Merchants Bank agreed to make payment upon bills of lading of cars of "dried grapes." The bills presented to it were for "raisins." It is said that the two expressions are *109
identical; that the trial court so found upon evidence which permitted that inference. It may be so. That, however, is not sufficient. We agree that if the words used in the guaranty and in the bill of lading were as a matter of common knowledge synonymous or if the guaranty covered a certain class of objects and the bill was for one species of that class no question could arise. If the guaranty covered automobiles and the bill was for motor cars; if the guaranty was for grain and the bill for wheat, the variance would be immaterial. So, too, if the course of dealing between the parties had been such that they might be held as a matter of law to have affixed their own meaning to the terms employed. (Decatur Bank v. St. Louis Bank,
This principle was decisive in Lamborn v. Lake Shore Banking Trust Company (
The judgments of the courts below should be reversed and the complaint of the plaintiff should be dismissed, with costs in all courts.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN and CRANE, JJ., concur; CARDOZO, J., absent.
Judgments reversed, etc.