Pollock v. Helm. incumbent on him to inquire into the state of dealings between the writer and the usee of the letter, for the purpose of learning whether there was any contingency about it, or whether any change of circumstances between the date of the letter and the advances under it would affect the liability of the writer. Russell v. Wiggin, ubi supra. Is the letter of Mr. Helm, president of the Capital State Bank, a general letter of credit within the purview of these authorities? The fair import is, you, Mrs. Wills, have authority to draw on N. G. Nye for $300. For any part of this sum you may wish to draw for on Mr. Nye, we will pay you the money for it here. It is as if he had said, Wherever you may be, and to whatever banker or capitalist you may show this, we agree, if any party will buy a bill or bills drawn on Mr. Nye, we will pay it or them, at our bank, to the extent of $300. The proposal is without contingency or condition. The only inquiry that would be made is, whether Helm and Odeneal are solvent and in good credit. If satisfied on that point, a party advancing money to Mrs. Wills would take the bill without regard to her solvency, even if she were known to be insolvent. It does not differ at all from the case of a drawee assuring the payee that he will accept and pay the drawer's bill or bills, in his favor, for $300. If that answer were returned to a verbal inquiry, it would not be controverted that the drawee would be bound by it. Nor is this letter distinguishable from that where a party writes to a banker to know whether he will pay a bill for $150, which W. offers to sell him, and the banker replies that he will. In such case, the banker will not be relieved by proof that after the answer had been given the circumstances had entirely changed, and that the fund to which he looked for reimbursement had been exhausted. There is no foundation for the suggestion of counsel that there was no consideration from the promise in the defendants' letter, which was accepted and relied on by Pollock. There was a benefit conferred upon Mrs. Wills by giving her credit to obtain the money at any place that suited her convenience; and this advantage to her is a sufficient consideration. It is just as good if the benefit inures to a third person interested in the subject-matter as if it accrues to the promisor, as the promise of A to pay B's debt to C, if he will forbear to sue, and the promise of a party who undertakes as surety for another. Russell v. Wiggin, ubi supra, per STORY, J., arguendo. VOL. XXVIII — 44 Pollock v. Helm. Pollock is not remitted, for the consideration of the defendants promise in the letter of credit, to the motives, inducements and dealings between them and Mrs. Wills; with that he has no privity or connection. And though it were true (and we doubt not that Mr. Helm gave a correct version of the affair) that the defendants intended to do Mrs. Wills a kindness and accommodate her, yet a party who has advanced money under their letter is affected by none of those things. Mrs. Wills might not be able to sustain an action against Helm and Odeneal on the facts deposed to by Mr. Helm; but Pollock occupies a different position, and his rights are to be measured by the fair meaning of the writing on the credit of which he acted. It is not admissible, by verbal testimony, to give to a written contract an import different from the plain and ordinary mcaning of its words. Especially ought this rule to apply where the paper is of the nature of a commercial negotiable instrument, to be read, construed and acted upon by strangers, who have no other means of learning its terms and scope except the language which the subscriber uses. We do not think that § 2228, Code 1871, extends to a case like this. Pollock does not stand in the relation of an assignee or indorsee of a bill, bond or note; but as we have attempted to show, is a party direct in the contract with the defendants, which is not controlled or affected by the equities existing between the defendants and Mrs. Wills. We are of opinion, for these reasons, that the circuit judge should not have received the testimony of Mr. Helm, explaining the letter of credit, and giving to it a meaning which its text did not admit of; nor should he have allowed testimony as to circumstances occurring after the letter was issued, tending to show that Mrs. Wills did not have money in the hands of Nye at all, or equal in amount to the bill. We have had some difficulty on the point made by the counsel for the defendants in error, whether the judgment should not stand, although this testimony ought to have been excluded. The very pith and marrow of the plaintiff's right to recover is, that he was induced to put out his money on Mrs. Wills' bill, on the faith of the defendants' letter of credit; and it does not appear by direct evidence that the letter was shown to Pollock, or its contents reported to him. The testimony on this point is not direct and positive, or fully satisfactory. There are two circumstances, how Pollock v. Helm. ever, from which it may be deduced that Pollock bought the bill on the faith of the letter. The first is, that he had possession of it, set it out in his declaration in haec verbis, and produced it on the trial. The other is, that the bill is directed to N. G. Nye, care of Capital State Bank, at Jackson, thus connecting itself with, and conforming to, the directions of the letter. For the error indicated the judgment is reversed, and the cause remanded for a new trial. NOTE BY THE REPORTER.-The rule as to letters of credit is thus expressed in Union Bank ▼. Costers Executors, 3 N. Y. 214: "In England it seems to be at this time questionable whether a party, who advances money upon a general letter of credit, can sustain an action upon it. Russell v. Wiggins, 2 Story, 214; Bank of Ireland v. Archer, 11 M. & W. 883. The reason assigned is that there is no privity of contract between them. It is there assumed that it is only a contract between the drawers of the letter and the person for whose benefit it is drawn. But in this country the contrary doctrine is well settled. Letters of credit are of two kinds, general and special. A special letter of credit is addressed to a particular individual by name, and is confined to him and gives no other person a right to act upon it. A general letter, on the contrary, is addressed to any and every person, and therefore gives any person to whom it may be shown authority to advance upon its credit. A privity of contract springs up between him and the drawer of the letter, and it becomes in legal effect the same as if addressed to him by name." Referring to Birckhead v. Brown, 5 Hill, 643. The court in the latter case cited Watson's Ex'rs v. Mc Laren, 19 Wend. 557; 26 id. 425; Boyce v. Edwards, 4 Pet. 111; Adams v. Jones, 12 id. 207; Lawrason v. Mason, 8 Cranch, 492; Bradley v. Carey, 8 Greenl. 234, observing, "whether this doctrine has not sometimes been carried beyond its legitimate limits, so as to make contracts where there was no privity between the parties, I will not now stop to inquire." This case was affirmed by the Court of Errors, 2 Den. 375, by an equally divided court. To the same effect, Lonsdale ▼. Lafayette Bank, 18 Ohio, 126; Baring v. Lyman, 1 Story, 696; Carnegie v. Morrison, 9 Metc. 381; Northumberland Bank v. Eyer, 58 Penn. St. 102. If a guaranty is addressed to a particular house by name, and another house advance goods upon it, they have no claim upon the guarantor. Birckhead v. Brown, supra; Bleeker v. Hyde, 8 McLean, 279; Grant v. Naylor, 4 Cranch, 224. If addressed to two, and acted upon by one only, the guarantor is not bound. Smith v. Montgomery, 8 Tex. 199; Myers v. Edge, 7 T. R. 254. Where addressed to no person in particular, it may be acted upon by any one, and by more than one; Lowry v. Adams, 22 Vt. 160; and parol evidence was there received, of the situation of the parties, the subject-matter of the contract, and the object to be attained by it, to show that the letter was designed to be available with differ ent dealers. In McLaren v. Watson's Ex'rs, 26 Wend. 425, it was held, that a general guaranty of payment of a note without naming any guarantee, may be enforced by any one who advances upon it, but is not negotiable, and is only available by the first holder, unless written on or attached to the note; but Senator VERPLANCK held that it was available to all holders, whether on or with the note or not. But in Union Bank v. Coster's Executors, 3 N. Y. 203, it was held that a general letter of credit, if it author ize more than a single transaction with the party to whom it is granted, may be honored by several persons successively, keeping within the specified aggregate. To the same effect is Lowry v. Adams, 22 Vt. 160, and it was so held in McNaughton v. Jonas, 9 Wis. 316, even where the letter of credit was addressed to a particular person. In this case, however, the letter guaranteed not simply what the party might buy of the persons addressed, but what he might "urchase in New York this fall." In Taylor v. Wetmores, 10 Ohio, 490, the guaranty, addressed to A., was "to the amount of $2,000 for goods deHivered to him," not in terms restricting it to A. Held, not available to others. In Orr v. Union Bank of Scotland, 1 Macq. 518, it was held that a letter of credit is not a Knotts v. Bailey. negotiable instrument, and possession of it does not conclusively import a right to possession and authority to act under it, and where a draft is drawn apparently by its authority, the persons addressed must satisfy themselves that the draft is genuine, or pay it at their own risk. This was where the letter was particularly addressed, and "not transferable." But a letter of credit is negotiable when it relates to bills of exchange. Thus, A. gave to D. a letter of credit addressed to him, authorizing him to draw on A., and D. accordingly drew, and sold the bills to C. Held, that C. taking the bills on the faith of the letter, was entitled to the absolute benefit of its terms, free from equities between A. and D. Agra v. Masterman's Bank, L. R.,■ Ch App. 397; In re Blakley Co., 8 id. 154. KNOTTS V. BAILEY. (54 Miss. 235.) Will-pecuniary legacies—real estate, when chargeable—intention to charge, how manifested. As a general rule, real estate is not chargeable with the payment of pecuniary legacies, unless the intention of the testator so to charge it is expressly declared or may be fairly deduced from the language of the will. Where it is manifest from the whole will that it was the design of the tests. tor that the legacies should be paid at all events, the implication is that the residuary legatee or devisee shall only have the remainder, after the satisfaction of the previous dispositions. A will whereby the testator, after making several bequests without creating an express trust to pay them, blends the realty and personalty together as one fund in the residuary clause, manifests an intention to charge a bequest of money on the land. ILL to recover a legacy. The opinion states the facts. BILL Stith & Phillips, Manning & Watson, for appellants. 1. A general legacy is never charged upon land, unless the intention so to charge it "is expressly declared, or fairly and plainly to be inferred from the terms of the will." Lupton v. Lupton, 2 Johns. Ch. 614, 623; Tracy v. Tracy, 15 Barb. 503. In construing a will, the court may place itself in the position of the testator, and look to the surroundings, to ascertain intention. 42 Barb. 43; Shulters v. Johnson, 38 id. 80; Gilliam v. Chancellor, 43 Miss. 437. Where, in a will, as in this, there is a disposition of part of the realty, and also of the personalty, and then a general residuary clause disposing of "all the balance of my estate, of whatever kind," or all the rest and residue, it implies that the testator had in his mind a balance of both personalty and realty, after satisfying the legacies out of Knotts v. Bailey. the one, and the devises out of the other. The language should be taken 66 distributively, reddendo singula singulis." Lupton v. Lupton, ubi supra; Gregory v. Molesworth, 3 Atk. 626, note; Keeling v. Brown, 5 Ves. 359; Roman Catholic German Church v. Watcher, 42 Barb. 43; Paxon v. Potts, 2 Green's Ch. 313; Tracy v. Tracy, ubi supra; Brookhart v. Small, 7 Watts & S. 229; Montgomery v. McElroy, 3 id. 370. 2. The personalty is first liable, and must be first exhausted. Lupton v. Lupton, ubi supra; Howse v. Chapman, 4 Ves. 542; Husbands v. Husbands, 1 Vernon, 94, 162; Sayer v. Sayer, Prec. in Ch. 392; Bridgman v. Dove, 3 Atk. 201; Bosril v. Brauder, 1 P. Wms. 459; Walcott v. Hall, 2 Bro. Ch. 305; Harris v. Fly, 7 Paige, 425; Bank of the United States v. Beverly, 1 How. (U. S.) 134; Tole v. Hardy, 6 Cow. 33; Hanna's Appeal, 31 Penn. St. 53; Evans v. Fisher, 40 Miss. 643; Paine v. Pendleton, 32 id. 323; Stigler v. Porter, 42 id. 449; Hollman v. Bennett, 44 id. 322; Tnrner v. Ellis, 24 id. 173; Webster v. Parker, 42 id. 465. Fant & Fant, for appellees. SIMRALL, C. J. A bill in chancery was exhibited by Sarah Bailey, née McDaniel, and her husband, to recover a legacy of $500, bequeathed to her by the testator Horatio Tyson. The bill charges that the testator left an estate worth about $25,000 but little indebted. After giving to his widow four slaves, to be selected by her, and land enough for them to work, by the second item of his will he bequeathed as follows: "I give and bequeath to Miss Sarah McDaniel, as a compensation for her services, the sum of $500." It is alleged that the legatee was an orphan, who had lived many years in the testator's family, and rendered valuable services, doing work usually performed by servants; that the testator expressed himself often as grateful for these services, and assured the complainant that she should lose nothing because thereof. The fifth item of the will is in these words: "My wish and desire is, that all the balance of my estate, of any sort whatsoever, that I may die possessed of, be divided between my other children, in the following manner to wit, that James O. Tyson and Thomas U. Tyson each have $1,500 more than my daughter Elizabeth P. Knotts." The testator died in 1862. The personal estate, which went into the hands of the executors, has long since disappeared. But there is a valuable real estate in Marshall county, left by the testator. |