Lead Opinion

(It was stipulated by and between respective counsel that the same briefs be considered, as far as applicable, in this and the companion case of the same title, No. 2735.)

OPINION This is a companion case to that of the same title, No. 2735,271 P. 465, in which an opinion has been this day delivered. This appeal is by the defendant and is from the order granting a new trial as to the $600 item. We will not restate the facts stated in case No. 2735, as they may be gathered from the opinion rendered in that appeal. It will be necessary, however, to briefly supplement the statement of the facts in that opinion.

This appeal involves the draft No. 3503, in which certain alterations were made. The trial court in granting the motion for a new trial as to the item in question said:

"* * * This latter draft had been altered by the issuing bank, the word "Lires" having been first written and scratched and the word "Drachmas" then written, which, under the testimony of banking experts, gave the instrument but a discretionary value at best, under banking practice; the drawee bank, the National Bank of Greece, at Athens, refusing to pay in this instance, and having returned the said draft to Kondas, the payee, and in its letter discharging itself of responsibility. *Page 142

"Plaintiff, payee, paid $600 for this 3,250 drachma draft, and was entitled to an instrument free from such error as would leave payment thereof to the discretion of the drawee bank on presentment."

A review of the evidence convinces us that the court was clearly right in its conclusion as to the evidence. This being true, there was nothing for the court to do but to grant the new trial. The law as declared in the companion case controls, and upon authority of that decision —

It is ordered that the matter be remanded to the trial court, with instructions to enter judgment for $600, with interest at the legal rate from September 6, 1919, with costs.

ON PETITION FOR REHEARING January 4, 1929.

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Addendum

Rehearing denied.