Page:Federal Reporter, 1st Series, Volume 2.djvu/620

 FIRST NAT. BA\K OP LACON V. BENSLET. 613 �a year after the original transaction, caused a draft dated October 15th to be again presented to the defendants for pay- ment, with the two bills of lading, which bave been previously described, attached thereto. �There resulted from the sale of the stock a loss which was the difference between the amount of the draft and the amount realized for the stock. This difference the defendants were called npon to pay. Payaient was refused, and this action was brought. It will be noticed that this action is not brought to recover from the defendants the value of the stock which they received and sold, nor the proceeds of the sales. The action proceeds upon the contract originally made be- tween the parties, which was special in its character ; and it is insisted by the plaintiff, upon the foregoing facts in the case, that the defendants are liable upon the draft which Buckingham & Bro. drew upon thena and delivered to the bank. �The case, so far as legal principles are involved, lies within very narrow compass. The agreement of the defendants, aa expressed in their telegram to the bank, was not simply an agreement to pay Buckingham & Bro.'s draft. It was an agreement on their part to pay J. Buckingham & Bro.'s draft with bill of lading attached, and, therefore, their promise was conditional. Its nature, in this regard, was communi- cated to the bank. Ail parties were advised that compliance with the terms named by the defendants was essential if the drawers and the bank would have the draft honored on prea- entation; and it is the fair meaning of the language used in the dispatch that bills of lading should accompany the draft upon its presentation for payment. It was necessary, in order to hold the defendants upon their special promise, that the draft should be drawn as they directed — that is, in the name of J. Buckingham & Bro. — and that proper bills of lading should accompany the draft. The presumption is that the condition thus prescribed by the defendants was imposed for their protection, and that they would pay the draft only in case bills of lading accompanied it; and the court cannot construe their agreement otherwise without de- ����