The opinion of the court was delivered, at the circuit session in September, 1856, by
Isham, J.
Independent of the question, whether these bills of exchange were drawn in pursuance of the letter of credit on which the estate of Mr. Leavenworth is now sought to be made chargeable, we axe satisfied that, as to those bills which fell due ¡previous to and on the 5th of August, 1854, the estate is discharged from all liability upon them, by the arrangement made on the 15th of August in that year. At that time Mr. Catlin executed four prommissory notes amounting in all to the sum of $ 12,000, payable in SO, 40, 50 and 60 days after date, which were endorsed by Mr. Wilkins and the firm of J. & J. H. Peck & Co., the latter of whom was not a party to the original bills, nor to the letter of credit. Those notes were received as collateral security for the payment of those bills which were then due and unpaid. The letter of credit, on the authority of which these bills were drawn, was signed by Mr. Leavenworth as surety for the other parties to that instrument. The fact that it was signed by him in that manner was known to the plaintiffs at the time the bills were received by them and discounted. The effect of that arrangement was to give further time fbr the payment of those bills to the persons primarily liable upon them, until the new’ securities had matured. It was a suspension of the right of the holder to sue the parties upon them, and an implied undertaking to wait for the payment of the original bills, until the notes fell due. The English authorities to that effect are very decisive, and such seems to be the general current of the American cases. In the case of Gould v. Robson, 8 East 576, it was [215] held that the holder, by taking a renewed bill payable at a future time, though under an express agreement that the original bills should be retained in his hands as security, impliedly agreed to give time until the new security became due, and could not sue, in the interim, on the original hill; Stedman v. Gooch, 1 Esp. Cases 14; 2 Amer. Lead. Cas. 182. We are aware that a different rule was held in the case Pring v. Clarkson, 1 Barn. & Cress. 14, in which the court, after recognizing the general principle that time given to the acceptor of a bill will discharge the other parties, observed, that “ in no case has it been said, that taking a collateral security “ from the acceptor shall have that effect.” That case, however, has not met with the approbation of elementary authors; Chitty on Bills, 444; Bailey on Bills, 341; and is considered as overruled in the exchequer by the case of Kendrick v. Lamax, 2 Cr. & Jer. 405. The case of Okie v. Spencer, 2 Wharton 253, is a Well considered and leading case in this country on that subject. In that case, the holder of a note, on the day it fell due, accepted from the maker a check drawn by him and a third person who were partners, payable six days afterwards, which, if paid at maturity, was to be in full satisfaction of the note. The court held that the check was received as collateral security, that it suspended the remedy against the maker of the note during that period, and was a discharge of the endorser. The same doctrine was held in the case of Myers v. Willis, 5 Hill 463, where a surety was discharged when a note had been accepted, payable at a future day on account of a debt for which he was liable. The same principle was subsequently sustained in the case Fellows v. Prentiss, 3 Denio 512. In all cases of that character, so far as those primarily liable for the debt are concerned, the suspension of the remedy will cease when the security has matured, and ordinarily they may then be sued on the original indebtedness. But in relation to sureties, such a suspension will effect a complete bar to the original right of action; 2 Amer. Lead. Cas. 183, and cases cited. If Mr. Leavenworth had stood as an endorser of those bills, it would hardly be questioned, but that he would have been discharged by the acceptance of those notes. The effect is the same when they seek to render him liable on that letter of credit which he signed as surety, unless it affirmatively appears that the remedy against the principals, was reserved [216] during that period; 2 Vt. 129. We think, therefore, the court were correct in disallowing those hills as subsisting claims against the estate of Mr. Leavenworth.
In relation to the remaining two bills of exchange, dated June 13th and 19th, amounting to the sum of f> 8,000, a majority of the court consider that they were also properly disallowed, on the ground that they were drawn after the decease of Mr. Leavenworth, which occurred on the 10th of May previous. The objection taken to the allowance of these bills equally affects all the others, except the first, dated on the 8th of May, 1854. The decease of Mr. Leavenworth, it is considered, was a revocation of all authority to' draw bills thereafter on the strength of that letter of credit; and in this respect, it is immaterial whether the plaintiffs had notice of his death at the time they received and discounted the bills, or not. The general principle is well settled, that an authority conferred by a letter of attorney must be executed during the life of the principal ; for a power to represent another, can only continue as long as there is some one to be represented ; Paley on Agency, 156 ; Bac Abg. Tit. Authority (d) ; Co. Litt. 52 (b.) In the case of Hunt v Rausmanier, 8 Wheat. 174, it was held, that a letter of attorney was revoked by the death of the party making it, though it may be irrevocable during his life; same case, 1 Peters 1. The same doctrine was held in Galt v. Gallaway, 4 Peters 344, in which the court observed that “ no principle is better settled, than that the “powers of an agent cease on the death of his principal. If an act “ of agency be done, subsequent to the decease of the principal, “ though his death be unknown to the agent, the act is void.” The reason of that rule is, that upon the death of the principal his estate belongs to his heirs, devisees, or creditors; and their rights cannot be impaired by any act of one who was not their agent, and who has no control over their property; Harper v. Little, 2 Greenleaf, 14, 18. That rule, however, is subject to the qualification, that if the authority is coupled with an interest, it is not revoked by the death of the principal. In such case, it survives the person giving it, and may be executed after his death. That qualification is recognized by both English and American authorities; Hunt v. Rausmanier, 8 Wheat. 174; 1 Amer. Lead. Cases 567, and cases cited; Walsh v. Whitcomb, 2 Esp. Cas. 565; Gaussen v. Morton, 10 Barn. [217] & Cress. 731; Smart v. Sanders, 5 Man. Gran. & Scott 894, 916. I have had some hesitancy, however, in coming to the conclusion, that these bills should be disallowed for that reason. The decease of Mr. Leavenworth probably determined the authority of Ro^lofson, Hatch & Co. to draw bills on him so as to bind his estate for their acceptance and payment. But Roelofson, Hatch & Co. were also authorized to draw jointly and severally upon the other parties to that letter of credit, and for such bills as were drawn upon either or all of them during a given period, Mr. Leavenworth therein gave his written guaranty that the bills should be accepted and paids While their authority to draw on Mr. Leavenworth was determined, it is difficult to perceive why they were not still authorized, during the period limited, to draw on Mr. Catlin, or either of the other persons who were living, and who signed that letter of credit. The decease of Mr. Leavenworth, it strikes me, could not determine the authority which they had given to draw on them individually ; and, if the letter of credit authorized the drafts, it would seem to follow that the plaintiffs could rely on Mr. Leavenworth’s guaranty, that they should be accepted and paid. In such case, it is not a question of agency, but of contract, and what will defeat its binding obligation. These bills, however, must be regarded as having been drawn without authority; the decease of Mr. Leavenworth having revoked the authority contained in that letter of credit. Under such circumstances, it was not necessary that notice of Mr. Leavenworth’s decease, should have been given to Roelofson, Hatch & Co. in order to determine their authority under it. The revocation was effected by operation of law. In such case, the power of the agent ceases immediately, without any further act being done. But when the revocation is effected by the act of the party, such notice becomes necessary, Galt v. Galloway, 3 Kent’s Com. 63, 67; Story on Part. 336, 7, 9. Partners bind each other by their contracts, on the principle that each is the agent of the others in their partnership transactions. That agency may be determined by operation of law, as by the death or bankruptcy of either. In such case, no notice is necessary to determine the agency of the survivors, as it is when it is determied by their Voluntary act; 3 Merivale, 614; 3 Swanston 490; 16 John. 494; Bissett on Part. 102, 104.
[218] The objection, -which has been taken to the allowance of these bills of exchange, on the ground that Roelofson, Hatch & Co., were not authorized, by that letter of credit, to draw them, payable in the city of New York, is, I think, .well taken. This objection affects not only the two last bills referred to, but it equally affects all the bills presented for allowance against the estate. There is no doubt as to the general principle which governs this subject. In 2 Amer. Lead. Cas. 213, 214, it is said that, “nothing is better “ settled than that a promise of acceptance must fail altogether, both “ as an executory contract, and as a virtual acceptance, whenever “ the bill to which it is sought to be made applicable falls without “ its limits in any material fact; and that the only safe guide is a “ scrupulous adherence to the letter of the contract;” and when the promise of the defendant is put in the form of a guaranty of future drafts, it will give no right of action unless minutely adhered to; Dobbin v. Bradley, 17 Wend. 422; Birkhead v. Brown, 5 Hill 634 ; Walworth v. Thompson, 6 Hill 540 ; Murdock v. Mills, 11 Met. 5.
The letter of credit, on the authority of which these bills were drawn, specifies no place at which the bills were to be made payable. They simply agreed to accept and pay such bills as should be drawn on them individually, or otherwise. If the bills were drawn on them jointly, it was a joint agreement to accept and pay them; if they were drawn on either one of them, it was a joint and several engagement, that they should be accepted and paid as they were drawn. It is unnecessary, in this case, to say whether the parties to that instrument were bound to accept and pay bills of exchange drawn payable at the Michigan State Bank, or whether they should be made payable at the place where the drawees resided and had their place of business. Roelofson, Hatch & Co. were authorized to draw through that bank, and probably the parties contemplated that the money was there to be advanced upon them. In the case of Lanuse v. Barker, 3 Wheat. 101, Johnson J. observed, “ where a general authority is given to draw bills “ from a certain place, on account of advances there made, the un- “ dertaking is to replace the money at that place.” But, on the other hand, it is clear that, if the bills themselves had been drawn, like the letter of credit, without specifying any place of payment, they [219] would have been payable at Burlington, in this state, where all the parties who signed that letter of credit resided; Chitty on Bills, 172; Mitchell v. Baring, 10 B. & Cress. 4. But however that may be, it is sufficient in this case to observe that the drawees were not bound by the terms of that contract to accept bills payable in the city of New York. If Roelofson, Hatch & Co. had authority to draw bills payable in that manner, they had equal authority to designate Baltimore or New Orleans as the place of payment. That is not the legal effect of the contract of acceptance, or letter of credit. If these bills had been drawn on Mr. Leavenworth and presented to him for acceptance during his life, he might have re» fused his acceptance without any violation of his contract. In the language of Bronson, J. in Birchard v. Brown, 5 Hill 642, he might have said ; “ That is not my contract, and so long as he can “ give this answer truly, he cannot be charged with the debt of his “ principal.” The acceptance of those bills would have imposed on him the performance of a duty, and a risk in the transmission of funds, and a liability to damages in case they were protested, which by his agreement he had not assumed. The case of Lanuse v. Baker is an authority on this question. In that case the defendant, who resided in New York, guaranteed the payment of such bills as shoidd be drawn on Tabor & Son, Portland, or himself, at sixty days sight. The bills were drawn on Tabor & Son, Portland, payable in New York. Justice Johnson observed; “ we are of opin- “ ion that these bills were not drawn in conformity to the assumption of the defendant. Merchants well understand the difference “ between drawing bills upon a specified place, and drawing them “upon one place payable in another. We are not to inquire into “ the reasons which govern them in forming Such contracts.” The place where Tabor & Son resided, was named in that letter of credit and guaranty, but the place where the bills were to be made payable was not specified; and if making those bills payable in New York, was unauthorized, it was equally without authority that these bills were so drawn. In the case of Ulster County Bank v. McFarlan, 5 Hill 432, it was held that a bill at ninety days after date, was not authorized by a letter of credit giving authority to draw at ninety days. The legal effect of the letter of credit was an authority to draw at ninety ,days sight, and as the bill created a [220] different obligation, the party was not liable for its payment. In that case, as in this, the legal effect of the letter of credit was different from that created by the bill. In the case of Dobbin v. Bradley, 17 Wend. 425, it was held that a party who was liable as surety or guarantor for the payment of the paper of another, when payable at a particular bank, is not liable when no place of payment is specified, though the paper was deposited in that bank, and notice given to the surety. The legal effect of a note payable at a particular place, is different from one where no place is specified, and for that reason the surety was not liable for its payment. Bronson, J. observed that “ it was immaterial whether the qual- “ ification which the party placed upon his liability was reasonable “ or unreasonable, or whether it was beneficial to him or not. He “ has a right to judge of that matter for himself. The cases,” he observed, “ speak a uniform language on the subject.”
The acceptance of these hills by Catlin would probably be considered a waiver of this objection, so far as these bills and he personally are concerned. It would not be competent for him to raise that objection after having, by his accceptance, promised to pay them. But that acceptance can have no such effect against the estate of Leavenworth, as he was not a party to those bills, nor is the estate bound by any act of those persons who signed the contract of acceptance with him, to which no assent on their part has been given. The fact that, upon the authority of the same letter of credit, bills had been previously drawn, payable in New York, which were accepted by Catlin, and paid at maturity, will have no effect to render even him liable upon bills subsequently drawn in that manner, whenever on that account he sees fit to refuse acceptance; much less will it have the effect to charge other persons who stand as sureties. The express provisions of that contract cannot, nor can its legal effect be changed or altered by such considerations. The contract is specific in its provisions, and in making the bills payable in New York, it is clearly at variance with its legal effect. Where there is no ambiguity in the language of the contract, the law settles its construction, and defines its legal effect. In such cases, the contract is not open to evidence of extrinsic circumstances for explanation, nor can its legal effect be changed by any practical construction of the parties. This very [221] point, as applied to letters of credit, under the .authority of which hills of exchange had been drawn, was determined in the case of Ulster County Bank v. McFarlan, 5 Hill 436. In that case, McFarlan had'accepted hills at ninety days after date, when he was bound, by the legal effect of his letter, to accept only bills at ninety days sight. Justice Bronson observed, “ it would be giv- “ ing a new application to the doctrine of estoppel in pais, to hold “ that it may govern the construction, or control the legal effect of “ a written instrument. He might accept bills, whether they were “ in conformity to the authority or not, or although they might have “ been without the shadow of an authority. The actual acceptance “ of the Mil produced did not furnish any evidence that he deemed “ it such a bill as he was bound, by the letter of credit, to pay.” In a note to that case it is also observed that even an admission of the party, that the bill was drawn within the letter of credit, “ would only go to the construction or legal effect of the letter, and “ therefore ought not to operate.” The same doctrine was recognised in Mendock v. Mills, 11 Met. 14. In that case, bills were drawn, under the authority of a letter of credit, which the defendant agreed to accept when accompanied by a bill of lading and an order of insurance. Several bills had been accepted when no such bills of lading or orders of insurance had been forwarded. Hubbard, J., observed that, “ the instructions were limited and express, “ and though they accepted most of the bills, on the belief that con- “ signments would cover them, yet such acts laid them under no ob- “ ligation to accept other bills not drawn agreeable to the directions “given’’ See, also, Parsons v. Armor, 3 Peters 430. Leavenworth hound himself to accept and pay such bills only as were drawn in conformity with the letter of credit, and his estate is liable for any breach of that contract. But it is not competent for those who stood in that contract as principals, by any declaration or by any course of dealing, to vary the terms or legal effect of that letter of credit. But, if it could be done, so far as to bind the principals in that contract, that fact of itself would discharge Leavenworth, or any other person who stood upon that contract in the relation of surety.
We are all agreed that the judgment of the county court must be affirmed.