Brown, Graves & Co. v. Ambler, Marvin & Stockton

66 Md. 391 | Md. | 1887

Bryan, J.,

delivered the opinion of the Court.

McGee and Hunt, merchants residing in Elorida, were authorized by a letter from Brown, Graves & Co., of Baltimore, to draw on them at sight with a hill of lading for five hundred dollars, as soon as the schooner Russell should complete her cargo of yellow pine flooring. The writers stated that they would honor the draft. The schooner was loaded and McGee and Hunt drew a draft for the amount on Brown, Graves & Co., in favor of J. Van Evary. He presented the draft with the lettér, and the schooner’s bill of lading to Ambler, Marvin and Stockton, bankers, who cashed the draft, and forwarded it to Baltimore for collection. It was duly presented, and payment being refused, it was protested. The bill of lading stated the cargo to be one hundred and forty-five thousand feet of yellow pine lumber, more or less, which was to be delivered to Brown, Graves & Co., or to their assigns, they paying freight. There had been previous dealings between Brown, Graves & Co., and McGee and Hunt, which it is not necessary at this point to state.

Under the authority of the decision in Franklin Bank vs. Lynch, 52 Md., 270, we must hold that Brown, Graves & Co. made a contract which would enure to the benefit of every bona fide holder of the draft who should take it on the faith of their letter; and that the necessary import of the contract was that the draft should be paid according to its tenor and effect. The contract, however, was on a condition stated on the face of the letter. There was no right to draw the draft until and unless the schooner completed her cargo of yellow pine flooring. If this condition was not performed, the right to draw did not exist. The bill of lading did not state that the schooner was laden with yellow pine flooring, but with yellow pine lumber ; and at the trial evidence was offered tending to show that only a little more than a third of the cargo was of the required description. The Court admitted evidence that the cargo was as valuable as yellow pine flooring would have been. In this ruling we think there was error. A purchaser of goods has a right to articles of the kind and quality which he contracts to huy. It is not sufficient to. give him something of a different kind which may he quite as valuable. It may not suit his purpose and wishes. An importer might order a cargo of coffee ; and he assuredly could not be required to accept in its stead a cargo of sugar on proof that it was equally as valuable. We have alluded to the other dealings between the drawers of the draft and Brown, Graves & Co. As these were not made known to the holder of the draft, he was not affected by them. He had a right to stand on the terms of the letter; and if the cargo laden on the schooner had been such as was described therein, we think the writers would have been liable for the amount of the draft.

It is a settled doctrine in our law, that a letter, written a reasonable time before or after the date of the bill of exchange, describing it in terms not to be mistaken, and promising to accept it, if shown or made known to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance binding the writer. Lewis vs. Kramer and Rahn, 3 Md., 289. It was said by Judge Story in Wildes vs. Savage, 1 Story’s R., 22, that this principle was not applicable to any bills of exchange except such as were payable on demand, or at a fixed time after date. On this question he said: “ Where bills are drawn payable at so many days after sight, it is impracticable to apply the doctrine; for there remains a.future act to be done, the presentment and sight of the bill, before the period, for which it is to run, and at which it is to become payable, can commence, whether it be accepted or be dishonored. If it is said, that the acceptance is to be treated as made, when the bill is actually presented for acceptance, and it is dishonored by the drawee, it is plain that we set up a prior intent or promise against the fact. Upon what ground can a Court say, when a party promises to do an act in futuro, such, for example, as to accept a bill, when it shall be drawn, and presented to him at a future time, that his promise overcomes his act at that time ? My judgment is, that the doctrine of a virtual acceptance of a non-existing bill, by a prior promise to accept it, when drawn, has no application to a bill drawn payable at some fixed period after sight; for it then amounts to no more than a promise to do a future act. ' I have looked into the authorities; and I do not find in any one of them, that the bill drawn, and to which the doctrine was applied, was a bill drawn at or after sight.” This Court in the case of the Franklin Bank, 52 Md., 270, refers to Judge Story’s opinion in terms of marked approval. We could not therefore hold the letter as a virtual acceptance of the draft. Another reason is that the promise to accept is conditional; whereas every acceptance of a bill of exchange ought to be positive and unconditional. All persons, however, who should bona ficle take a bill of exchange on the faith of a letter promising to accept it, would have ample remedy by an action for the breach of the promise to accept. So the difference would be of no practical importance in its bearing on their rights.

Evidence was offered tending to show that sometime previously to the date of the letter in question, Brown, Graves & Co. had advanced to McGee and Hunt a thousand dollars on a cargo of yellow pine flooring to be brought by the schooner Russell; that after this advance was made, they requested by letter another advance of five hundred dollars more, and that therefore the letter was written in reference to the acceptance of the draft; that the draft, with the letter and bill of lading attached, arrived before the cargo, and was presented and acceptance refused; that subsequently the schooner arrived with its cargo which was delivered to them by the captain of the vessel, under a bill of lading identical in terms with the one attached to the draft; that the cargo was very indif-' ferent, and was not yellow pine flooring, and that it was sold to the greatest advantage, and produced only eight hundred and eighty-three dollars and ninety-nine cents. It will be seen that according to this evidence, the cargo of the schooner was received by Brown, Graves & Co., in pursuance of a regular commercial contract made on valuable consideration; and that their possession of it was in no way derived from the holders of the draft and letter. Assuming it to be true ; the cargo would unquestionably be the property of Brown, Graves & Co., and they would not be responsible to any other person for taking possession of it. We think that the prayer offered by the defendant is in accordance with the views which wre have expressed. The Court erred in refusing it.

(Decided 5th January, 1887.)

tJudgment reversed, and neio trial atvarded.