American Nat. Bank & Trust Co. v. Banco Nacional De Nicaragua, Inc., 1 Div. 17.
| Citation | 238 Ala. 128,189 So. 191 |
| Decision Date | 11 May 1939 |
| Docket Number | 1 Div. 17. |
| Parties | AMERICAN NAT. BANK & TRUST CO. v. BANCO NACIONAL DE NICARAGUA, INC. |
| Court | Supreme Court of Alabama |
Rehearing Denied June 8, 1939.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.
Action by Banco Nacional De Nicaragua, Incorporated, against American National Bank & Trust Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Thos A. Hamilton and J. Gaillard Hamilton, both of Mobile, for appellant.
Smith & Johnston and Chas. B. Arendall, Jr., all of Mobile, for appellee.
This is the second appeal in this case. American National Bank & Trust Co. v. Banco Nacional De Nicaragua, 231 Ala. 614, 166 So. 8. However, the case presented by the record on this appeal is quite different from the case made by the record on the former appeal, both as to pleadings and evidence.
Each of the trials in the circuit court resulted in a verdict for the plaintiff, appellee here. In the discussion of this case, on this appeal, we shall for convenience refer to the appellant as defendant, and the appellee as plaintiff.
After the reversal and remandment of the case on the former appeal, the plaintiff amended its complaint by adding two additional counts--counts 5 and 6--and plaintiff also filed, in addition to a general replication to plea 8, as amended, and as pleaded separately to counts 1, 2, 3 and 4, two special replications, numbered 2 and 3. Plea 8 as amended is set out at length in the report of this case on former appeal.
The court sustained a demurrer to replication No. 3, and this replication, therefore, went out of the case.
The defendant, by written motions, moved to strike, separately and severally, counts 5 and 6, and also to strike certain parts of these added counts, but each of said motions was overruled by the court, and in each instance the defendant duly reserved an exception.
After the court had refused to strike counts 5 and 6, or any of the parts of said counts, the defendant demurred to each of said counts, and these demurrers were overruled by the court.
To counts 5 and 6, separately and severally, in addition to the general issue, the defendant filed a number of special pleas, including plea 8, as amended, theretofore filed to counts 1, 2, 3 and 4.
The court sustained plaintiff's demurrer to pleas E and F, but overruled the same as to pleas C and D. Plea E was addressed to added count 5, while F was addressed to count 6. Pleas C and D were addressed to both counts 5 and 6, separately and severally.
Added counts 5 and 6 are predicated upon the identical letter of credit of December 28, 1933, issued to J. B. Ardoyno, and the reinstatement thereof on January 23, 1934, set forth in original counts 1, 2, 3 and 4, and seek to recover of the defendant the amount of $9000, alleged to be due on four drafts drawn upon defendant by one J. B. Ardoyno under said letter of credit and the reinstatements thereof under date of January 23, 1934, and which it is alleged the plaintiff cashed or purchased pursuant to the January 23, 1934, reinstatement of said letter of credit, and the letter written to plaintiff at the time of the issuance of said letter of credit of December 28, 1933. A copy of the letter of credit issued to said J. B. Ardoyno under date of December 28, 1933, and a copy of the letter written by defendant to plaintiff under same date, advising plaintiff of the issuance of said letter of credit to said Ardoyno, and making certain suggestions and directions, are also attached to, and made a part of, said counts 5 and 6. These documents are also set out in full in the report of the case on former appeal, and we will not, therefore, again set them out on this appeal.
In added count 5 plaintiff, by way of inducement, and to show the former course of dealings between plaintiff and defendant, in the matter of supplying credit to the Gulf Fruit and Steamship Corporation in Nicaragua, in order that it might purchase and export to Mobile, Alabama, bananas, pleaded two certain other letters of credit issued by the defendant to its former correspondent, Compania Exportadora Nacional, one under date of November 14, 1933, and the other under date of December 13, 1933. Each was issued, as above stated, to enable the Gulf Fruit and Steamship Corporation to purchase bananas in Nicaragua, and export same to Mobile, Alabama, for sale at the latter place, or elsewhere. The plaintiff also brought forward, as a part of said count, the two letters written by the defendant to plaintiff at the time of the issuance of these letters of credit. While these letters of credit were issued to the Compania Exportadora Nacional, they were issued by the defendant at the instance of the said Gulf Fruit & Steamship Corporation, and each of said letters authorized the Compania Exportadora Nacional to value on the defendant on account of the said Gulf Fruit & Steamship Corporation. These former letters of credit were numbered 126 and 127 respectively.
We deem it proper to here set out the said letters of credit 126 and 127, and the two letters written by defendant to plaintiff with reference thereto.
Letter of credit 126 reads:
The letter written by defendant to plaintiff at the time of the issuance of letter of credit 126, copied above, is as follows:
The defendant's letter of credit No. 127, under date of December 13, 1933, is as follows:
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