Page:Federal Reporter, 1st Series, Volume 2.djvu/622

 FIEST NAT. BANK OF LAGON V. BBN8LET. 615 �of the contract. There was a substantial deviation from the terms upon which the defendants stated that they would pay the draf t, and which,, I think, relieved them frpm liability upon the draf t ; and their aceeptance of the stock under the circumstances which have been stated, and the acoount of sales which they rendered, and payment of the proceeds realized from such sales, did not, in my judgment, establish such liability. Their payment was not made on account of the draft. Nothing in the case shows that they have at any time, since they first refused payment of the draft, recognized it as a binding obligation upon them. Nor do I think that the subsequent presentation of the draft, with these bills of lading attached, more than a year after the transaction, c'an avail the plaintiff. No time was specified by the defendants when the draft should be presented for payment. The law, therefore, implies that it was to be presented within a rea- Bonable time, and it cannot be held that presentation in December, 1878, was seasonable, so as to avail the plaintiff in the prosecution of this action, �It was suggested on the argument that the defendants suf- fered no loss for want of bUls of lading; that the property in question came to their hands, and that they were enabled to deal with it as effectively, as if there had been literal compli- ance with the contract under which the defendants agreed to pay the draft ; but this doss not answer the objection that, as this is an action to enforce a special and conditional contract against the defendants, there is devolved upon the plaintiff the necessity of showing an actual compliance on its part with the terms or conditions of that contract. �It follows from these views that judgment must be rendered in favor of the defendants. ����