76 Iowa 629 | Iowa | 1889
— On the seventeenth of November, 1887, George Barro sent a dispatch from Los Angeles, California, to defendant, directing it to transmit two thousand dollars by telegraph to plaintiff at Los Angeles, and charge the amount to his account, he having at the time a deposit of a larger amount with defendant. On the next day defendant’s cashier telegraphed to plaintiff that the bank would pay Barro’s draft on it for two thousand dollars. On the receipt of that dispatch at Los Angeles, Barro drew his draft and delivered it to plaintiff in payment of an indebtedness he was owing him. The following is a copy of the draft: “$2,000. Los Angeles, Cal., Nov. 18, 1887.
“At sight pay to order of Hervey Lindley, of Los Angeles, California, two thousand dollars, with exchange on New York, for value received, and charge to account of “ George Barro.
“ To First National Banlc, Waterloo, Iowa.”
The draft was subsequently presented, but defendant refused to accept or pay it. On the same day on which he sent the dispatch, the cashier also wrote to plaintiff that the bank would pay Barro’s draft for two thousand dollars, but the letter was not received by plaintiff until' after he had taken the draft. On the twenty-eighth of November, which was after the draft had been presented and refused, he also wrote to plaintiff that the bank had been enjoined from paying, and that but for such injunction it would have paid it when presented. The foregoing facts are alleged in the petition, and further it is alleged that the exchange provided for in the draft would have amounted to two dollars. The petition is in three counts. The first and second counts are drawn on the theory that the telegram and letter of the eighteenth of November amounted to an acceptance. The third count states a cause of action on the breach of the contract to accept.
The ground of the demurrer is that the draft drawn is materially different from that which defendant agreed to pay, requiring the payment of a greater sum of money. Counsel for appellee concede that, if the draft
It was urged in argument that it is a custom of bankers, in paying drafts drawn under like circumstances, to pay exchange in addition to the face of the paper, and hence that defendant’s promise was impliedly a promise to pay with exchange. It is sufficient to say, with reference to that claim, that the custom is not pleaded. The action is upon the promise as written, and its language is unambiguous. The words made use of import a promise to pay two thousand dollars. Without some averment that the words made use of have a meaning different from their ordinary signification, it cannot be assumed that the undertaking was broader than it expressed. We have no occasion to inquire whether the custom, if pleaded, could be shown for the purpose of modifying or explaining the undertaking. As we reach the conclusion that upon the facts alleged defendant is not liable, it is not necessary to consider the question as to the ruling of the district court in striking out portions of the petition. The error, if one was committed, in no manner affects the result.
Affirmed.