(148 N.E.) ping documents for sugar, to be shipped from / white sugar at 22c per pound less 2 per cent. Java during August and September, in absence duty paid f. o. b. cars Philadelphia landed of fixed time when sight drafts were to be pre- weights, shipments to be made during August sented, law will read into instrument a provi- and September, 1920. sion that they were to be presented within a We advised the Bankers' Trust Company reasonable time.

of this credit our No. 13840, but they have re

turned our advices, stating that credit should Appeal from Supreme Court, Appellate Di- have been opened directly with you and not vision, First Department.

through them. Kindly advise us in this connec

tion. Action by Arthur H. Lamborn and others,

Very truly yours, copartners doing business under the firm

“[Signed] H. L. Sparks, name and style of Lamborn & Co., against

"Assistant Cashier." the National Park Bank of New York. From a judgment of the Appellate Division (212 On June 11th the National Park Bank noApp. Div. 25, 208 N. Y. S. 428), affirming | tified Lamborn & Co. that the shipping period, judgment of Trial Term without a jury (123 according to the instructions received from Misc. Rep. 211, 204 N. Y. S. 557), for plain- Brodsky Gross & Co., was August and Septiffs, defendant appeals. Affirmed.

tember from Java.

Here we have a full and complete letter of
Louis F. Doyle, of New York City (Emmet
F. Smith, of New York City, of counsel), for credit, confirmed and irrevocable, issued by

the defendant to the plaintiffs in accordance Van Doren, Conklin & McNevin, of New with instructions from Brodsky Gross & Co. York City (Louis 0. Van Doren, and Alfred

or their Chicago agents carrying out the C. B. McNevin, both of New York City, and terms of the contract of sale. Edward S. Bentley, of Lawrence, of counsel),

The sugar arrived in December of 1920, for respondents.

and was placed on board cars at Philadel. phia. A draft for $79,623.24 was drawn on

the defendant and presented at its New York CRANE, J. On the 24th day of April, banking house with all the required docu1920, Lamborn & Co., a copartnership with principal offices in the city and state of New given was that the letter of credit had ex

ments. Payment was refused. The reason York, sold to Brodsky Gross & Co., of Chi

pired. There was no claim made that a letcago, Ill., 1650 bags of Java white sugars: ter of credit had not been issued. It is The contract of sale was in writing, and conceded and always has been that the plainprovided as follows:

tiffs complied fully with all shipping in"Shipment. · Shipment to be made during structions, and that they presented all the August-September, 1920, at option of the sell documents required by the letter of credit. ers, from Java by steamer or steamers to Phil

This action is brought to recover on the adelphia, Pa. Names of such steamer or steam

letter of credit the amount of the draft. The ers to be declared later.

“Payment. Payment to be made by net cash defenses are inconsistent. First, the defend-
on presentation of sight draft, with invoice and / ant denies that there was any letter of cred-
bill of lading attached in New York. Buyers it; secondly, it claims that, if there were a
to open within five (5) days confirmed irrevoc- letter of credit, it expired on October 1, 1920.
able letter of credit in favor of Lamborn & Co., The case was fully tried out before the court
New York City, for the full invoice value of without a jury, and judgment delivered for
1650 bags with Bankers' Trust Company, New the plaintiffs, which has been affirmed by the
York City, and Bankers' to confirm same to
Lamborn & Co., New York City.”

Appellate Division, one of the justices dis

senting (212 App. Div. 25, 208 N. Y. S. 428). The "confirmed irrevocable letter of cred

[1, 2] We may dismiss the first contention it” was not opened with the Bankers' Trust of the defendant, that there was no letter of Company, but with the defendant, the Na- credit, by the brief statement that all of its tional Park Bank. It read as follows:

correspondence regarding this transaction ad

mitted that there was a letter of credit, its "The National Park Bank of New York. sole claim being until the matter came to

"May 5, 1920. court that the draft was not presented in "Messrs. Lamborn & Co., 132 Front Street, time. It is said that the letter of May 5th City. Re Our Credit No. 13840—Gentlemen : contained no promise to pay. Letters of We beg to advise you that we have received in- credit do not usually contain a direct promise structions from Greenebaum Sons' Bank & to pay. Such a promise is implied or inTrust Co., Chicago, to open a confirmed credit ferred from the statement that credit has in your favor with the Bankers' Trust Co., for $79,685.76, payable against delivery of sight been established and is irrevocable. A condrafts with invoices and bills of lading attached firmed irrevocable letter of credit, an irrevcovering 1650 bags about 224 lbs. each Java ocable letter, or a confirmed credit is a con

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tract to pay upon compliance with its terms, , Bank & Trust Company, Chicago, for the acand needs no formal acknowledgment or ac count of Brodsky Gross, Chicago, Ill., for $79,ceptance other than is therein stated. Banks

685.76. may—they usually do—communicate to the

"You state that you advised the Bankers' drawer the instructions received from the advices, stating that credit should be opened

Trust Company, but that they returned your correspondent establishing the credit. Gelp directly with us. This is correct. We beg to cke v. Quentell, 74 N. Y. 599; Krakauer v.

request that you issue this letter of credit for Chapman, 16 App. Div. 115, 45 N. Y. S. 127, $79,685.76, setting expiration date of Decemaffirmed 162 N. Y. 623, 57 N. E. 1114; Doel. ber 31, 1920. We also beg to call your attenger v. Battery Park National Bank, 201 App. tion to the fact that shipment should be AuDiv. 515, 194 N. Y. S. 582; Border Nat. gust and/or September from Java, Bank of Eagle Pass, Tex., v. American Nat.

“We regret that this matter has not been Bank of San Francisco (C. C. A.) 282 F. 73. called to your attention at an earlier date, but

would appreciate your co-operation in arrangMoss v. Old Colony Trust Co., 246 Mass. ing details, so that they may be satisfactory to 139, 140 N. E. 803, contains no statement or all concerned. ruling to the contrary, as intimated by the “Yours very truly, courts below. The letter of credit in that

"Lamborn & Company, case had been rejected. Chief Justice Rugg

“[Signed] G. F. J. Amthor, is particular to point out that no particular "McF/AMS

Credit Department." form is prescribed for a letter of credit. "Their nature and use," says he, "ought to

Certain things are to be noted about this be kept as free as possible from narrowing letter. It refers to the letter of credit No. statements of limitations and from judicial | 13840 as one which has been issued upon indicta not necessary to a particular decision.” structions for the account of Brodsky Gross,

[3, 4] As to the second ground of defense, Chicago, Ill. It answers the last and only that the letter of credit had expired on Oc- inquiry in the letter of May 5th by saying tober 1st, we must consider other letters that the credit opened with Lamborn & Co., passing between the parties after May the directly instead of with the Bankers' Trust fifth. In considering these letters we must Company is correct. It then contains the carry in mind the terms and conditions of request that the letter of credit set the exthis alleged letter of credit of May 5th aspiration date as of December 31, 1920. In amended or modified by the letter of June other words, instead of leaving the drafts 11th. It advised Lamborn & Co. that the to be presented within a reasonable time, defendant had received instructions to open the plaintiffs ask that a definite time be a confirmed credit for $79,685.76, payable stated. October 1st is not mentioned or re against sight drafts and shipping documents, ferred to in either the letter of May 5th or showing that the sugars were placed f. o. b. that of June 10th. On the following day cars Philadelphia, shipments to be made dur- the National Park Bank answers: ing August and September, 1920, from Java.

"The National Park Bank of New York, The credit was to be opened with the Bank

“June 11, 1920. ers' Trust Company, but that bank had instructed the National Park Bank to open it

"Messrs. Lamborn & Co., 132 Front Street,

City. Re Our Credit No. 13840—Gentlemen: directly with Lamborn & Co. The letter Referring to your favor of June 10th, relative closed by asking, "Kindly advise us in this to our confirmed credit No. 13840, we regret connection." I have said that this consti- having to advise you that we have no authority tuted a complete letter of credit. No time to extend validity of this credit from October was mentioned within which the sight drafts 1st to Dec. 31st, and would suggest your comwere to be presented. In the absence of a municating with your customers and having fixed time the law will read into the instru- corrected instructions sent to us. This also apment a provision that they were to be pre-structions received by us specified August and

plies to the shipping period, which in the insented within a reasonable time. See above September from Java. cases.

"Very truly yours, On June 10th, the plaintiffs wrote the de

“[Signed] H. L. Sparks, fendant the following letter:

"Assistant Cashier." "Lamborn & Co., Import & Export Depart

Notice should be taken that this letter rement.

fers to "our confirmed credit No. 13840," and "132 Front Street, New York. that the instructions regarding the ship“June 10, 1920.

ping period “specified August and September "National Park Bank of New York, No. 214 from Java." In reply to the request of the Broadway, New York City-Gentlemen:

We plaintiffs, the defendant writes that it has refer to your letter of credit No. 13840, issued no authority to extend validity of this cred. upon instructions from Greenebaum & Sons' it from October 1st to December 31st. The

(148 N.E.) defendant does not say that its instructions, be correct. The shipping documents and were to limit the time of payment to October | bills of lading showing that the sugar bad 1st, and it has never in its brief or by the been placed f. o. b. cars at Philadelphia unevidence claimed that its instructions were der no circumstances could possibly be preto this effect. The contract between Brods- sented to the bank on October 1st. No interky Gross & Co. and the plaintiffs contained pretation should be given to this letter of no such limitation-in fact no limitation at credit of the defendant or its correspondall. The letter of credit of May 5th con ence which would make the whole thing tained no limitation. The sight drafts were meaningless and an absurdity. The defendto be presented within a reasonable time. ant intended to give the plaintiff's something Lamborn & Co, asked that a definite time of value. Its letter of May 5th, followed by might be fixed, and I read this answer of the that of June 11th, cannot be considered as National Park Bank under June 11th as mere empty formalities. The bank should meaning that the defendant bank had no be held to the fair import of its engagement. power or authority to make that definite These, letters must receive a reasonable conwhich had been left indefinite. The letter struction, having regard to the intent of the of credit had been given the number 13840. parties and the circumstances. Krakauer v. Throughout the correspondence this number Chapman, supra. "In the construction of is referred to as the letter of credit. The written contracts it is the duty of the court, first mention of it is in the letter of May as near as may be, to place itself in the 5th, wherein it is termed, "Our credit No. situation of the parties, and from a consid13810." This is the only letter of credit in eration of the surrounding circumstances, the evidence in this case having this number. occasion and apparent object of the parties, It contains no reference to October 1st. It to determine the meaning and intent of the reads in the eyes of the law as though it language employed.” Gillet Bank of contained the provision payable against “de- America, 160 N. Y. 549, 555, 55 N. E. 292, 294. livery of sight drafts within a reasonable Beyond doubt, the defendant considered time." If those words had been actually that it was bound to do something; that it written into this letter of credit 'No. 13840, was held to the plaintiffs by some valid and we would not consider that the letter of enforceable obligation. After the drop in June 11th modified or struck them out. The the price of sugar it wrote on August 25th plaintiffs, by the letter of June 10th, request- as follows: ed that the time limit be made definite. This

"The National Park Bank of New York. letter of the defendant of June 11th simply

"August 25, 1920. refused the request as not within its instruc

"Messrs. Lamborn & Co., 132 Front Street, tions. It did not attempt to modify the let-City-Dear Sirs: Referring to our credits ter of May 5th in this particular, or to say numbered 13840 and 14031, opened in your fathat anything had been omitted. The an vor by the Greenebaum Sons' Bank & Trust swer was that the letter must stand as it Company of Chicago, Illinois, we beg to advise was, as the bank could not modify it; the you that our correspondents have to-day teleinstructions which had been followed could graphed us directing that payments be suspend

ed until further notice. not be departed from. And thus the matter

“Please advise us if this arrangement has was left.

your consent.
The plaintiffs never acquiesced in any mod "Yours very truly,
ification, and did not consider that the date

“[Signed] H. L. Sparks,
of payment had been limited to October 1st.

“Assistant Cashier." How could any reasonable business man dealing in sugars to be shipped from Java

And again on August 27th: during August and September accept a let “The National Park Bank of New York, ter of credit which would expire the day aft

"August 27, 1920. er the last day of shipment from Java? The

“Messrs. Lainborn & Company, 132 Front claim of the defendant would nullify the let- Street, City-Dear Sirs: Referring to our letter altogether.

It is unreasonable. By a ter of August 25th in which we advised you stipulation of the parties it was agreed that that the Greenebaum Sons' Bank & Trust Comin the ordinary course of shipping it takes pany of Chicago had directed us to suspend 75 days to bring goods from Java to Phila- payments under our credits numbered 13840 delphia. Goods shipped the 1st day of Au- and 14031 until further notice, we would point gust, the earliest possible date for shipment out to you that apparently we have not reunder the sales contract and the letter of

ceived your consent to this arrangement.

"We are to-day in receipt of a letter from credit, could not possibly reach Philadelphia our correspondents, in which they explain that until 15 days after the expiration of the their clients, Messrs. Brodsky, Gross & Co., letter of credit, if the defendant's contention wish to examine all documents presented be

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fore authorizing payment. In other words, I of credit and acted upon it by making the they evidently expect that you will surrender | shipment of goods therein mentioned; that the documents to us for forwarding to our this letter of credit, when issued by the deChicago correspondents, and that your cus fendant and accepted by the plaintiffs, contomers are to have the privilege of examining tained no expiration date. There was ample these documents before authorizing payment. Awaiting an expression of your views on this evidence to sustain these findings. subject, we remain

For the reasons here stated, the judgment "Yours very truly,

appealed from should be affirmed, with costs. “[Signed] H. L. Sparks, “Assistant Cashier."

HISCOCK, C. J., and CARDOZO, McThe plaintiffs answered on August 31, 1920:


JJ., concur. "August 31st, 1920.

POUND, J., absent. "Credit Department, "National Park Bank, 214 Broadway, New

Judgment affirmed. York City-Gentlemen: With regard to your confirmed letter of credit No. 13840, which you advised was issued in accordance with instructions received by you from Greenebaum Sons'

(240 N. Y. 533) Bank & Trust Company, Chicago, Ill., in our

BANNER MILLING CO. V. STATE. favor, covering a purchase from us by Brodsky Gross & Co., Chicago, Ill., of 1500 bags of Java (Court of Appeals of New York. July 15, white sugar 10 per cent. more or less at 22€

1925.) per lb., less 2 per cent. duty paid, f, o. b. cars Philadelphia, Pa., landed weights, shipment dur- 1. Appeal and error Om 1094 (3)-On unanimous ing August or September, 1920, from Java,

affirmance by Appellate Division of judgment which shipping point you confirmed to us un

of Court of Claims, review is limited to find. der date of June 11, 1920, as it is our inten ings of fact made by Court of Claims. tion to comply fully with all of the terms and On unanimous affirmance by Appellate Diconditions of the contract covered by this let- vision of judgment of Court of Claims allowing ter of credit barring unforeseen circumstances compensation for property taken by eminent which form part of the contract, we will un- domain, review by Court of Appeals is limited der no circumstances agree to either the sus to findings of fact made by Court of Claims, pension of payment or the cancellation of this and it cannot go behind such findings to deterletter of credit. As this letter of credit shows mine what such court considered and did not no definite date of expiration, and as the sugar consider in making up its judgment. was sold the consignee on the basis of f. o. b. cars Philadelphia, Pa., landed weights, shipment 2. Eminent domain 107_State is not refrom Java during August or September, 1920, quired to pay loss from compelling owner of we will look to you for payment of our sight land taken by eminent domain to remove busi. drafts when accompanied by invoices, landed ness to some other place. weight certificate and railroad bills of lading State, on taking land for public use is not blank indorsed.

required to pay owner for expense of removing

business to some other place, or for damage We think that the defendant's letter of from interruption of business and good will. credit gave the plaintiffs a reasonable time within which to present their sight draft 3. Eminent domain m107–Legislature may and papers, and that the plaintiffs have fully

authorize recovery for loss of profits in busicomplied with all the terms and conditions

ness or for damages to good will of going entitling them to payment.

concern caused by appropriation of land. If, however, there be any question of fact

Legislature may authorize recovery for loss gathered from all the circumstances and cor- will of going concern caused by appropriation of

of profits in business or for damages to good respondence as to what the letter of credit land for state or its agencies, as it did by Water did mean and as to the intention of the par- Supply Acts (Laws 1905, c. 724, as amended by ties, if there be different inferences which Laws 1906, c. 314). might be drawn from the correspondence, the facts were all before the trial justice, 4. Eminent domain m107—Statute held not who made his findings after hearing the case,

to give grounds of payment for loss of good and on them based his conclusions of law.

will through appropriation of site of busi

ness; "compensation;" "damages;" "other He found as a fact that on May 5, 1920, the

property." defendant for a valuable consideration mov

Laws 1918, c. 606, extending time for filing ing to it issued and delivered to the plain-claims for compensation or damages because of tiff's a confirmed irrevocable letter of credit appropriation of lands, or other property for in words and figures as contained in the let. Barge Canal, did not authorize payment for inter of May 5th, and that thereupon and there- terruption to good will of milling business after the plaintiffs accepted this said letter whose site was appropriated; words "com

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(148 N.E.) pensation" and "damages," as used therein, Claim by the Banner Milling Company being synonymous, and meaning compensation against the State of New York. From a judgallowed by law for taking of property, and ment of the Appellate Division (210 App. Div. words “other property" not extending to right 812, 205 N. Y. S. 911), afirming a judgment of recovery beyond compensation for property of the Court of Claims (117 Misc. Rep. 33, appropriated according to previous law.

191 N. Y. S. 143), awarding compensation [Ed. Note. For other definitions, see Words for property taken for Barge Canal purposes, and Phrases, First and Second Series, Com

claimant appeals. Affirmed. pensation; Damage-Damages; Other.)

Henry W. Hill, of Buffalo (Alfred W. Gray, 5. Eminent domain Om 134_Measure of dam. of Niagara Falls, of counsel), for appellant. ages for appropriation of flour mill property,

Albert Ottinger, Atty. Gen. (Edward J. stated.

Mone, of Albany, of counsel), for the State. In appropriation of mill site and property

Martin Conboy, of Riverdale on-Hudson under Barge Canal Terminal Act, it was competent to prove all use that could be made of (John Jay McKelvey and Harry B. Chambers, it, value of it as live, going flour mill, increased both of New York City, of counsel), for Isaac value, if any, which structure so used had giv- G. Johnson & Co., amicus curiæ, en to land, and all valuable appurtenances and availabilities of property.

CRANE, J. Pursuant to chapter 746 of the 6. Eminent domain P 126(1)-Sum allowed Laws of 1911, known as the Barge Canal for property appropriated need not equal sum Terminal Act, and its amendments, the state of cost of various items in production thereof appropriated appellant's property in the city as going business concern, but such items of Buffalo, used by it for a flour mill. The should be considered.

property had been used for the manufacture In estimating value of property appropri- of flour since 1887, and for the past 10 years ated, sum allowed need not equal sum of cost the business had produced for the claimant of various items in production of property, averaged earnings of over $50,000 annually. though, to estimate fair market value of mill The state did not appropriate the business, site appropriated under Barge Canal Terminal or intend to carry on the business. It sought Act, court should have considered, not only the land and its appurtenances for Barge cost of production, but cost necessarily or rea - Canal purposes. All fixtures, as far as possonably expended in bringing mill or factory into efficient working condition, such as archi- sible, were to be removed by the owner. tect's fees in making or revising plans, and com

The Court of Claims, pursuant to the propensation for engineers to carry out plans or cedure in such cases, allowed the claimant to arrange factory so as to produce appropri- for the lands appropriated $235,000, made up ate results, but sum allowed need not necessa as follows: For the lands appropriated, $90,rily be equal to total of all such various items. 000; for the value of the structures appro7. Eminent domain C 107-Refusal of Court

priated, $90,000; for the value of the power of Claims, in fixing value of mill site appro

plant appropriated, $8,317.62; and for dampriated to allow for expenses of preliminary ages to the machinery and fixtures not apconstruction, held not to invalidate award, propriated, $46,682.38. Refusal of Court of Claims, in fixing com

Both the state and the claimant appealed pensation for mill site appropriated under from the judgment of the Court of Claims to Barge Canal Terminal Act, to allow recovery of the Appellate Division, where the judgment preliminary construction expenses, held not to was unanimously affirmed, with the exception invalidate award; the claimant being entitled that paragraph 7 thereof was stricken out. only to have such expenses considered in fixing This paragraph stated the reason why the value of plant as going concern.

court had made no allowance for damages 8. Appeal and error w 1091(1)-On unanimous to the good will of the business. The claimaffirmance by Appellate Division of Court of ant is in this court by the certification of the Claims' allowance for appropriation of prop- | Appellate Division that there is a question erty, it must be assumed that award includes of law involved, which ought to be reviewed all elements of value, except on showing to contrary.

by us.

[1] On the argument and in its brief the On unanimous affirmance by Appellate Division of allowance by Court of Claims for ap- law-one relating to the value of the mill as

appellant seeks to present two questions of propriation of mill site under Barge Canal Terminal Act, it must be assumed that award in a going concern, and the other as to the good cludes every element of value to which claimant will, both of which it is claimed the court was entitled, unless contrary appears by some excluded in allowing damages or compensaruling or exception.

tion. In my judgment, the state of the record presents the latter question only.

By reason of the unanimous affirmance we Appeal from Supreme Court, Appellate Di-l are confined in our review to the findings of vision, Fourth Department.

fact made by the Court of Claims. We can

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