Lamborn v. National Bank of Commerce of Norfolk
Lamborn v. National Bank of Commerce of Norfolk
Opinion of the Court
delivered the opinion of the Court.
This action was brought in the federal court for eastern Virginia by Lamborn & Company, of New York City, against The National Bank of Commerce of Norfolk. The jurisdiction of the District Court rested upon diversity of citizenship. The plaintiffs sought damages for the refusal to honor a sight draft drawn against a letter of credit, given pursuant to a contract of T. S. Southgate & Company to buy 1,000 bags of Java white sugar at 22 cents per pound less 2%, duty paid, f. o. b. Philadelphia, landed weights. Payment'was to be made in New York City upon presentation of sight draft with invoice and railroad order notify bill of lading attached. The letter of credit provided: “Shipment to be made during August/September, 1920, at option of the sellers from Java by Steamer or Steamers to Philadelphia.”
The sugar tendered had been shipped on the West Cheswald, a steamer which sailed from Java on September 30,
The Bank claimed that the sugar tendered failed to satisfy the requirements of the contract, because it had come, not on a steamer which had been continuously destined from Java to Philadelphia, but upon one which, originally destined from Java “ to Port Said, option New York,” was diverted by the charterers to Philadelphia, while on the high seas. The West Cheswald had sailed by a direct route from Java to Philadelphia, the diversion having been made while she was near Bermuda, about three days from port, so that she could pursue the same route to Philadelphia as if she had at all times been destined for that port. In fact, another steamship bearing sugar shipped by plaintiffs — the Washington Maru— which sailed from Java two days earlier and had at all times been destined to Philadelphia, arrived there three days after the West Cheswald. The case was tried twice before a jury. The only question in serious controversy was one of construction — the meaning to be given to the clause in the letter of credit quoted above. At the first trial both parties requested a directed verdict. The verdict was directed for the plaintiffs. The Court of Appeals reversed the judgment entered thereon and ordered a new trial. 2 F. (2d) 23. At the second trial, the presiding
The defendant is obviously not liable unless there was a tender of sugar which met with the requirements of the letter of credit as to amount and quality of the sugar, as to the time, Norrington v. Wright, 115 U. S. 188, and the place, Filley v. Pope, 115 U. S. 213, of shipment; and as to the manner of shipment and the ultimate destination.
We find nothing either in the words of the letter of credit, in the custom of the trade, or in reason, which justifies implying the condition that, from the inception of the voyage, Philadelphia must have been the destination intended. The transaction is not like the ordinary contract for goods to be shipped. It is not like the common c. i. f. contract for shipment from a foreign to an American port, where delivery to the ship at the port
The plaintiffs were entitled to a directed verdict. The conclusion which we have reached is in accord, not only with that reached by the Circuit Court of Appeals for the Second Circuit, but also with that of the state courts which have had occasion to construe the same provision
Reversed.
Compare Bowes v. Shand, 2 App. Cas. 455; Ashmore & Son v. Cox & Co., [1899] 1 Q. B. 436; Landauer & Co. v. Craven & Speeding Bros., [1912] 2 K. B. 94; Hansson v. Hamel & Horley, Ltd., [1922] 2 A. C. 36; Merchants Bank v. Griswold, 72 N. Y. 472; Bank of Montreal v. Recknagel, 109 N. Y. 482; Mora y Ledon v. Havemeyer, 121 N. Y. 179; Iasigi v. Rosenstein, 141 N. Y. 414.
H. O. Wilbur & Sons, Inc. v. Lamborn, 276 Pa. 479, 487; Williams Ice Cream Co., Inc. v. Chase National Bank, 120 N. Y. Misc. 301; 210 App. Div. 179; J. Hungerford Smith Co. v. Lamborn, 200 N. Y. Supp. 292; Telling Belle Vernon Co. v. Lamborn, N. Y. Law Journal, December 22, 1920; Pennsylvania Milk Products Co. v. Lamborn (and other cases), N. Y. Law Journal, January 4, 1921. See also Central Sugar Co. v. Lamborn, 200 N. Y. Supp. 499, 195 App. Div. 909; Lamborn & Co. v. Log Cabin Products Co., 291 Fed. 435; Lamborn v. Hardie Co., 1 F. (2d) 679.
Dissenting Opinion
dissenting.
I think the judgment below should be affirmed. I cannot agree that a condition in a commercial letter of credit, that drafts are to be drawn against merchandise “ shipment . . . from Java by Steamer or Steamers to Philadelphia ” is satisfied by a shipment “ from Java to Port Said, option New York,” even though the cargo ultimately reaches Philadelphia. I had supposed, as the opinion below seems to me to show, that the character of a shipment is fixed at the time it is made, and hence that language in a mercantile contract indicating that a shipment is to be made from one point to another could only mean that the point of destination is to be known and specified at the time of shipment. Hannson v. Hamel & Horley, Ltd., [1922] 2 A. C. 36; Landauer & Co. v. Craven & Speeding Brothers, [1912] 2 K. B. 94; Mora y Ledon v. Havemeyer, 121 N. Y. 179; Iasigi v. Rosenstein, 141 N. Y. 414, 417.
But even if this were doubtful as a general proposition, there would seem to be no room for doubt in the present
Reference
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- LAMBORN Et Al. v. THE NATIONAL BANK OF COMMERCE OF NORFOLK
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