Birckhead v. Brown

2 Denio 375

• Court: New York Supreme Court
• Decided: December 15, 1845
• Status: Published

Opinion

Senator Bockee

delivered an opinion in favor of reversing the judgment of. the supreme court. He concurred with that court in holding that the letters written by the defendants constituted them guarantors to W. and J. Brown & Co., for such advances as that firm might make within limits prescribed by the letters; but he held that they also imported a further con tract by the defendants with any person who might on the faith of the letters advance money upon the bills drawn by Demarest, that such bills should be accepted and paid by W. and J. Brown & Co., and that such engagement was in the nature of a general letter of credit; and he was of opinion that the plaintiffs by advancing money to Demarest and receiving bills drawn by him on W. and J. Brown & Co. under the circumstances stated in the special verdict became parties to that contract, and were entitled to enforce it by action against the defendants.

Senator Porter also delivered an opinion in favor of reversing the judgment of the supreme'court. He likewise held that the letters in question contained an engagement on the part of the defendants that the bills of Demarest drawn on W. and J. Brown & Co. within the prescribed limits, and negotiated at •Rio, should be duly honored, and that this engagement enured to any one who upon the faith of the letters should advance the money to Demarest on the bills, and that such act would create a privity of contract between the. parties so advancing money and the defendants, and that th< plaintiffs were consequently entitled to recover.

Both these senators were of oj lion that the bills drawn at ninety days were not within the rms of the guaranty, and that the recovery in the superior coi ; was rightly limited to the amount of the draft drawn at sixl ¡days sight.

Senator Talcott delivered ar .the judgment of the supreme cm the defendants’ engagement was only, and that there was no pi ppinion in favor of affirming |, mainly on the ground that to W. and J. Brown & Co. rity of contract between the plaintiffs and the defendants, and agreeing substantially with the positions laid down in the opinion of the supreme court.

Senators Beers and Mitchell also delivered opinions in favor of affirming the judgment of the supreme court.

On the question being put, “Shall the judgment of the supreme court be reversed?” the members of the court voted as follows:

For reversal: Senators Backus, Beekman, Bockee, Corning, Deyo, Faulkner, Folsom, Johnson, Porter, Smith and Varney—11.

For affirmance: The President, and Senators Barlow, Beers, Emmons, Hand, Jones, Lester, Lott, Mitchell, Scovil and Talcott—11.

Judgment affirmed.