Foerderer v. Moors

• Decision Date: 28 December 1898
• Docket Number: 24.
• Citation: 91 F. 476
• Parties: FOERDERER v. MOORS et al.
• Court: U.S. Court of Appeals — Third Circuit

91 F. 476

FOERDERER v. MOORS et al.

No. 24.

United States Court of Appeals, Third Circuit.

December 28, 1898

John G Johnson, for plaintiff in error.

Joseph De F. Junkin, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District judge.

ACHESON Circuit Judge.

Upon the application of Keen-Sutterle Company, general importer of skins, wools, etc., J. B. Moors & Co., plaintiffs below (the defendants in error), bankers in Boston, issued their letter of credit, dated November 7, 1895, addressed to Suffert, Von Laer & Co., London, authorizing them to draw on Morton, Rose & Co., bankers in London, at four months date, for any sum or sums not exceeding in all 15,000 lire sterling, for account of Keen-Sutterle Company, the 'drafts, with advice thereof to Messrs. Morton, Rose & Co., to be drawn in Europe and negotiated prior to May 1, 1896, for the invoice cost of merchandise to be shipped to the port of Boston, New York Philadelphia, or Wilmington, in the United States, or Montreal, Canada, and to be accompanied by consular invoice and bills of lading to our order; one copy to be sent us direct by vessel or mail.' Contemporaneously with the giving of this letter of credit, Keen-Sutterle Company entered into an agreement with J. B. Moors & Co., embodied in a letter from the former to the latter, dated November 7, 1895, and indorsed on a copy of the letter of credit, containing the following stipulation:

'Having received from you the letter of credit No. 4,725, on our account, of which a true copy is on the other side, we hereby agree to its terms, and, in consideration thereof, bind ourselves to furnish you, fifteen days before the maturity of the acceptances under it, with first-class bankers' bills of exchange, for the same account, at not exceeding sixty days' sight, on or payable in London, and bearing our indorsement, or to pay the equivalent thereof in cash at the current rate of exchange for first-class demand or sixty days' sight bankers' bills.'

'We hereby pledge to you, also hereby giving you a specific claim and lien thereon, all merchandise, and the proceeds thereof, for which you may have paid, or come under any engagement by reason of this credit, also all bills of lading and all policies of insurance, with full power and authority for you to take possession of and sell the same, or any part of same, at your discretion, for your security or reimbursement; and to charge same with all expenses, together with your commission for sale or guaranty.'

'Any security which may be held by you hereunder may be held and applied by you to secure also any other indebtedness or liability existing, or which may hereafter exist, from us to you; and we further agree to give you any additional security that you may require.'

'Any goods imported under this or any other credit issued by you for our account, or their proceeds, whether the draft against same shall have been paid or not, or whether the goods shall have been delivered to us or not, may be held by you as general collateral security for our account with you, upon the terms and conditions herein contained.'

At the request and for the accommodation of Keen-Sutterle Company, Robert H. Foerderer, defendant below (the plaintiff in error), became the guarantor of performance by Keen-Sutterle Company of its agreement with J. B. Moors & Co. The guaranty was in the form of a letter attached to the agreement between Keen-Sutterle Company and J. B. Moors & Co., and bore even date therewith. The following is a copy of the guaranty.

'Boston, Nov. 7th, 1895.

'J. B. Moors & Co., Boston-- Dear Sirs: In consideration of the sum of one dollar, to be in hand paid by you, the receipt whereof is hereby acknowledged, I do hereby guaranty, promise, and agree, to and with you, that the within named Keen-Sutterle Co., of Philadelphia, will well and faithfully perform and fulfill everything by the foregoing agreement on their part and behalf to be performed and fulfilled, at the times and in the manner therein provided. And I consent that you may, in your discretion, afford said Keen-Sutterle Co. such favors, by way of extension, renewal, and otherwise, as you may deem expedient; and I agree generally to hold you harmless against any and all loss, damage, cost, expense, and commissions which may happen or accrue in consequence of or upon said letter of credit or agreement, or the extension or renewal thereof. When deemed expedient by you, I hereby authorize you to deliver to said Keen-Sutterle Co. any or all merchandise, or the documents applicable to same, under said letter of credit, upon their agreeing either to store said merchandise in your name, or to hand you the proceeds of same (identical or otherwise), or to deliver said merchandise to purchasers, with instructions to make settlement with you direct; and with the further understanding on my part that in the event of their failure so to do, or in the event of your not receiving said settlement, that I am not in any way released from any of the foregoing obligations on my part to be kept or performed. And I do hereby expressly waive and dispense with any demand upon the said Keen-Sutterle Co., and any notice of any nonperformance on their part, holding myself liable to you, under said agreement and the letter of credit named in said agreement, equally with said Keen-Sutterle Co. in all respects.

'Robert H. Foerderer.'

From the record it appears that in July and August, 1895, Keen-Sutterle Company had ordered a quantity of wool from Suffert, Von Laer & Co. This wool was all put on board the ship Nahum Chapin, lying in Algoa Bay, South Africa, in the month of October, 1895, prior to the 15th of that month; and three different bills of lading therefor, each covering part of the wool, dated, respectively, October 5, 12, and 14, 1895, were issued to Reiners, Von Laer & Co. These bills of lading were indorsed by Reiners, Von Laer & Co., and sent to Suffert, Von Laer & Co., in London. The Nahum Chapin, laden with this wool, sailed from Algoa Bay on October 15, 1895, on a direct voyage to Philadelphia. Suffert, Von Laer & Co., acting under the recited letter of credit, drew three drafts on Morton, Rose & Co. for the invoice cost of this wool, each draft being accompanied by one of the said bills of lading, indorsed to the order of J. B. Moors & Co. The drafts respectively bore date November 11, 18, and 26, 1895, and matured March 14, March 21, and March 29, 1896. Together they amounted, in United States money, to $58,759.02. They were accepted by Morton, Rose & Co., who gave due notice thereof to J. B. Moors & Co., and forwarded to them the bills of lading. The Nahum Chapin, with the cargo of wool, arrived at Philadelphia on December 14, 1895. Before the arrival of the vessel, all the bills of lading had been received by J. B. Moors & Co., and by them had been delivered to Keen-Sutterle Company upon 'trust receipts.' Keen-Sutterle Company thus obtained possession of the wool, and sold it, appropriating the proceeds to itself. This company failed, and was put into the hands of a receiver on January 9, 1896.

This suit was brought by J. B. Moors & Co. against Robert H Foerderer upon his guaranty, to recover the loss sustained by the...