1. A bank at Decatur, Illinois, accredited B. with a bank at St.
Louis, Missouri, saying that "his drafts against shipments of
cattle to the extent of $10,000 are hereby guaranteed."
Held that
hogs were included within
the term cattle, and that B.'s drafts against shipments of hogs
not having been paid, the Bank of Decatur was responsible on its
letter of credit.
2. Though there may be plain error in a charge, yet if the
record present to this Court the whole case, and it be plain from
such whole case that if the court had charged rightly, the result
of the trial would have been the same as it was, this Court will
not reverse.
In the autumn and winter of 1869, P. E. Frederick -- who,
according to his own account, was at that time "engaged in buying
and shipping stock in St. Louis" -- intending to purchase cattle
there and ship them to a business connection of his in Chicago,
named J. S. Talmadge, who was to receive and sell them, and honor
Frederick's drafts given in payment for the same -- applied to the
First National Bank of Decatur, Illinois, for a letter of credit on
some bank in St. Louis. The bank at Decatur accordingly gave him a
letter on its correspondent, the Home Savings Bank of St.
Louis.
The letter was in these words:
"FIRST NATIONAL BANK"
"DECATUR, ILL., September 13, 1869"
"H. C. PIERCE, ESQ."
"Cashier, St. Louis, Mo."
"SIR: We beg herewith to accredit with you P. E. Frederick,
Esq., whose drafts on shipments of cattle to J. S. Talmadge,
Page 88 U. S. 295
Chicago, are herewith guaranteed to the amount of ten thousand
dollars for thirty days from date."
"Yours respectfully,"
"J. H. LIVINGSTON"
Pierce answered thus:
"HOME SAVINGS BANK"
"ST. LOUIS, September 18, 1869"
"J. H. LIVINGSTON, ESQ."
"Cashier"
"DEAR SIR: Mr. Frederick has today presented your letter of
credit for $10,000 of 13th at thirty days. Permit me to inquire, in
case his drafts for $10,000 or less on Talmadge are paid, does your
letter mean that we may take his draft again up to same amount, and
so on for your limit, thirty days? That is to say, do you guarantee
us for thirty days on Frederick's drafts on Talmadge for
$10,000?"
"Yours respectfully,"
"H. C. PIERCE"
"Cashier"
And on the 21st of September, 1869, the cashier of the Decatur
bank replied as follows,
viz.:
"FIRST NATIONAL BANK"
"DECATUR, ILL., September 21, 1869"
"H. C. PIERCE, ESQ., Cashier"
"St. Louis, Mo."
"DEAR SIR: Your favor of the 18th is received. Yes, we guarantee
you on Frederick's drafts on Talmadge for $10,000 for thirty days
from September 13, 1869."
"Yours respectfully,"
"J. H. LIVINGSTON"
The thirty days limited in the last letter being on the eve of
expiration, the Illinois bank renewed and extended its guarantee by
the following communication,
viz.:
"FIRST NATIONAL BANK"
"DECATUR, ILL., October 20, 1869"
"H. C. PIERCE, ESQ."
"Cashier, St. Louis, Mo."
"DEAR SIR:
The guarantee given for Mr. Frederick,
please consider extended for thirty days from expiration."
"Yours &c.,"
"J. H. LIVINGSTON"
Page 88 U. S. 296
And again, when the limit fixed by the last letter had
expired:
"FIRST NATIONAL BANK"
"DECATUR, ILL., November 22, 1869"
"H. C. PIERCE, ESQ."
"Cashier, St. Louis, Mo."
"SIR:
The letter of credit given you for Mr. Frederick
is hereby extended for thirty days from expiration last date."
"Respectfully,"
"J. H. LIVINGSTON"
"Cashier"
Accredited with the letters thus given, Frederick went to St.
Louis, and -- having just previously to the 10th of December, 1869
(that is to say, within the term embraced by the letter of November
the 22d), shipped
hogs to his correspondent at Chicago,
Talmadge -- drew drafts to the amount of $8,000 against them.
Talmadge failed before the drafts came due, and the bank at St.
Louis now came upon the bank at Decatur for payment under the
guarantee. This latter bank set up that its guarantee was of drafts
drawn against shipments of
cattle, and that the drafts
sued on were against shipments of hogs, and that these were not
cattle, which term, as understood in the transaction, was confined
to animals of the bovine species. The Decatur bank did not allege
that any injury had accrued to it by the fact that the shipment was
of hogs, which would not have accrued if the shipment had been of
animals of the bovine species, or that there was any want of good
faith on the part of the St. Louis bank or of Frederick in the
transaction.
There was also a plea:
"And for a further plea &c., the defendant says
actio
non, because, it says, that it is not true that the defendant,
by its cashier, executed the alleged letters of credit, or written
guarantee, or any of the same in said counts mentioned and
described; and this the defendant prays may be inquired of by the
country &c."
But this plea was apparently abandoned.
The court below charged
"that the contract of guarantee was contained
in the letter
of J. H. Livingston, dated September
Page 88 U. S. 297
21st, 1869, and the extension thereof, and that the
defendant would be bound to pay drafts drawn by Frederick upon
Talmadge within the limits of the said letter and the extensions
thereof, as to time and amount,
no matter whether such drafts
were drawn upon shipments of cattle or not."
To this instruction the defendant excepted, and verdict and
judgment having been given for the plaintiff, the defendant brought
the case here. The bill of exceptions set out all the evidence in
the case.
Page 88 U. S. 298
MR. JUSTICE DAVIS delivered the opinion of the Court.
The basis of this suit is the letter of credit of 13th
September, 1869. The subsequent correspondence, on any rational
interpretation of it, did not have the effect to change the terms
of this the original letter, nor was it intended to do so except in
two particulars, which are not the subject of controversy.
The defense now made, technical though it be, is sufficient to
defeat the action if the condition of the guarantee was not
observed, and this fact renders necessary a construction of the
instrument.
Like all other contracts, it must receive the construction which
is most probable and natural under the circumstances, so as to
attain the object which the parties to it had in contemplation in
making it. Frederick was engaged in buying and shipping stock in
St. Louis during the fall and winter of 1869, and the presumption
is in the absence of any evidence on the point, that he resided in
Decatur, where the plaintiff in error had its place of business. At
any rate, he was unknown in St. Louis, without either money or
credit, and, as he could not carry on his business without money,
it was necessary that he should be accredited to some
responsible
Page 88 U. S. 299
banking house in that city. This was done through the letter of
credit of 13th September. The bank to which this letter was
addressed doubtless thought its correspondent trusted in some
degree to the pecuniary responsibility of Frederick, but it had no
right to suppose that the letter of credit was given solely on this
account. On the contrary, the letter is based on the idea that
shipments of stock would protect the drafts. If Frederick was
responsible, still the Decatur bank did not trust to this alone,
but relied on the security which was to accompany the drafts. This
it had a right to do, and its conduct was very natural under the
circumstances. Indeed, the business in which Frederick was engaged
is usually conducted in this manner. The Decatur bank doubtless
believed, and acted on the belief, that the stock would sell for
enough to pay the drafts, and if it did not, the loss would be
inconsiderable and such as Frederick could readily meet.
It now seeks to escape liability not on the ground that stock
sufficient to secure the drafts was not shipped, but that it was a
different sort of stock from that named in its letter. It is fair
to presume that an investment in hogs yielded as good a return as
an investment in cattle, and if the consignee in Chicago had not
failed, that no trouble would have arisen. As this consignee, named
by it, and with whom the St. Louis bank had no concern, did fail,
it seeks to throw the loss on the St. Louis bank because it
interpreted the letter to embrace shipments of hogs as well as neat
cattle.
The question then arises was this interpretation correct?
That stock of some kind formed part of the guarantee is quite
plain, but is the word "cattle" in this connection to be confined
to neat cattle alone, that is, cattle of the bovine genus? It is
often so applied, but it is "also a collective name for domestic
quadrupeds generally, including not only the bovine tribe, but
horses, asses, mules, sheep, goats, and swine." [
Footnote 1] In its limited sense it is used
to designate the different varieties of horned animals, but it is
also frequently
Page 88 U. S. 300
used with a broader signification as embracing animals in
general which serve as food for man. In England, even in a criminal
case, where there is a greater strictness of construction than in a
civil controversy, pigs were held to be included within the words
"any cattle." [
Footnote 2] And
in other cases in that country involving life and liberty, the word
has been construed so as to embrace animals not used for food.
[
Footnote 3]
Did the Decatur bank use the word in its narrow and restricted
meaning or in its more enlarged and general sense? In other words,
did it intend to restrict Frederick to the dealing in horned
animals alone, and so confine the defendant in error to drafts
based on this kind of stock? There was no apparent motive for doing
so. Clearly, security was the object to be attained, and this was
better attained by leaving Frederick unrestricted in the choice of
animals to send forward to market, provided they were of the kind
generally used for food. It is well known that the market varies at
the Chicago cattle yards. At certain times, hogs have a readier
sale and bring better prices than other kinds of stock, and at
other times horned animals alone command the attention of buyers.
Every prudent dealer in stock informs himself of the state of the
market before purchasing, and the means of doing this are greatly
multiplied in later years.
That Frederick pursued this course and bought and sold according
to the indications of the Chicago market would seem clear from the
evidence, for he says he was engaged in buying and shipping stock
in St. Louis during the fall and winter of 1869. If his operations,
except in the single instance on which the drafts in suit are
based, were confined to horned stock, why did he not say so? If
true, it would have strengthened the defense, because it would have
shown that all the dealings between Frederick and the defendant in
error, with a single exception, were based on shipments of stock of
the bovine genus. These dealings were continued
Page 88 U. S. 301
through a period of three months by the renewals of the
guarantee, and could not have been infrequent. It would seem,
therefore, that the parties in St. Louis dealt with each other on
the understanding that the guarantee embraced the different kinds
of stock which are used for food and usually sent for that purpose
to the Chicago market.
They had the right to give this construction to it, and there is
nothing in the evidence tending to show that the plaintiff in error
understood it differently except that the word "cattle," as often
used, does not include hogs. But it would be a narrow rule to hold
that this word was used in its restricted sense in the absence of
any evidence, other than inferential, on the subject. Especially is
this so when the word is susceptible of a different meaning, and
important transactions have been based on the idea that it was
employed in its enlarged, and not in its restricted, sense.
This construction of the letter of credit disposes of the case
and affirms the judgment.
It is true, the judge of the circuit court instructed the jury
that the letter of September 21, which leaves out the terms "on
shipments of cattle," constituted the contract of guarantee between
the plaintiff and defendant, but the result would have been the
same if he had charged the jury, as we are of the opinion that he
should have done, that the rights of the parties were to be
determined by the terms of the original letter of credit of the
13th September.
In either aspect of the case, the judgment must have been for
the plaintiff below, and to warrant the reversal of a judgment,
there must be not only error found in the record, but the error
must be such as may have worked injury to the party complaining.
[
Footnote 4]
The bill of exceptions contains all the evidence in the case,
and though the jury may have found their verdict on a wrong theory
of the case, yet as the court can see that the verdict was correct,
the plaintiff in error is not harmed by the misdirection of the
judge. The result is right, although the manner of reaching it may
have been wrong.
Page 88 U. S. 302
It was urged at the bar that national banks are not authorized
to issue letters of credit, and if so, that the action cannot be
sustained. But the record does not raise the question, and it
cannot therefore be considered. It is true a plea was interposed
which was doubtless meant to raise it, on which, issue to the
country was tendered, but for aught that appears it was
abandoned.
No evidence was offered under it, but if this were not
necessary, the attention of the court at least should have been
called to it, and proper instructions asked. If refused, error
could have been assigned, and the point would then have been
properly before the court for decision.
Nothing of the kind was done, and it is too late to raise the
question now.
Judgment affirmed.
[
Footnote 1]
Worcester's Dictionary, in verbo, "Cattle."
[
Footnote 2]
Rex v. Chapple, Russell & Ryan, Crown Cases 77.
[
Footnote 3]
Rex v. Whitney, Moody's Crown Cases 3;
Paty's
Case, 2 W. Blackstone 721;
Rex v. Mott, 2 East Pleas
of the Crown 1074-1076.
[
Footnote 4]
Brobst v.
Brock, 10 Wall. 519.
