Mercier v. Copelan

• Decision Date: 30 September 1884
• Citation: 73 Ga. 636
• Parties: Mercier. vs Copelan.
• Court: Georgia Supreme Court

73 Ga. 636

Mercier. vs Copelan.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Principal and Agent. Letter of Credit. Waiver. Estoppel. Drafts. Contracts. Evidence. Books. Pleadings. Practice in Supreme Court. Before Judge Eve. City Court of Richmond County. November Term, 1883.

Reported in the decision.

J. S. & W. T. Davidson, for plaintiff in error.

Harper & Bro., for defendant.

Hall, Justice.

By consent of counsel, this case was tried by the presiding judge without a jury. The court, upon the evidence submitted, gave judgment for the plaintiff for the amount claimed. The defendant moved for a new trial, upon the several grounds stated in the record; the motion was overruled, and he excepted, and brought the case to this court by writ of error. The declaration set forth two drafts drawn by St. J. Arm and, in favor of plaintiff, on the defendant, to each of which was attached a bill of lading for cotton shipped by Arm and to defendant, and which had been paid for by plaintiff. The defendant refused payment of these drafts when presented, because, as he alleged, he had neither money nor cotton in hand belonging to the drawer to meet them, and they were protested.

On the 28th day of September, 1882, the defendant gave St. J. Arm and a letter of credit, whereby he engaged to honor drafts drawn by him " for cotton purchased at ruling market price, with bills of lading attached." The drafts sued on were dated respectively October 30th and November 3d, 1882, and were both payable to the order of plaintiff. When first sent and presented for payment, they were unaccompanied by bills of lading, and for this reason payment was refused, and they were returned. Subsequently copies of the bills of lading were procured and attached, and payment was again refused for the reason first above set forth. On this letter of credit, Arm and purchased in all fifty-five bales of cotton, which were forwarded to and received by defendant. He drew for these purchases sixteen drafts on defendant, payable to the order of plaintiff. Fourteen of the drafts had no bills of lading attached, but were, notwithstanding, paid by the defendant without objection. The plaintiff advanced to Arm and, on October 18th, 1882, five hundred dollars to purchase cotton, andhe drew on defendant for this amount; failing to use this money, or perhaps a portion of it, in that way, he returned $390 of the amount to plaintiff, who, on the 19th of the same month, paid it in a check, which was forwarded to defendant by Arm and, who, in the letter conveying it, informed him that he drew the $500 to pay for cotton at Penfield and Wood wlle, but did not need that amount, so he sent the check for balance, as it may be presumed legitimately, not spent in the purchase of cotton, for in the same letter he informed him he would send him invoice for " some cotton" the next ("to morrow") morning. This draft of $500 was likewise paid, without objection by the defendant, on the 20th of October, 1882. Subsequent drafts, drawn respectively on October 23d, 24th, 26th and November 1st and 2d, though having no bills of lading attached, were likewise paid. There is no direct evidence that Arm and improperly used that part of the five hundred dollars advanced to buy cotton, and not repaid in the check for $390 sent to defendant, nor is there anything in the proof which would authorize the inference that he did so; on the contrary, we think, from the terms of the letter transmitting the check and other correspondence with the defendant, as well as the attendant circumstances, it is much more probable that this excess of $110 was invested in " some of the cotton " which was just subsequently forwarded and "invoiced" to the defendant.

It is urged that the plaintiff was not authorized by this letter of credit to advance money to Arm and to buy cotton; that, according to its terms, he could only pay for cotton after it was purchased. Whether this is a correct construction of the letter of credit, it is quite immaterial to inquire; it is sufficient that the defendant, with a full knowledge of the facts, ratified the transaction. It is conceded that he is bound, as to the $390 sent to him in a check, to meet this five hundred dollar draft; but it is insisted that h...