Pope v. Huth

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

The Appellants received, at London, on the 23d June, 1856, a letter from, the Respondents, inclosing the following order:

“ Messrs. F. Huth & Co. Gentlemen :—Please hold to the order of Messrs. Wm. Pope & Sons, of Boston, (£500) five hundred pounds sterling, of insurance, effected on cargo per bark Elvira, and oblige,

Tour obedient servant, Lubeck & Co.”

To which letter Huth & Co. reply as follows:

“ London, June 24th, 1856.

Messrs. Wm. Pope & Sons, Boston, U. S.—Gentlemen : We are in receipt of your letter of the 6th instant, concerning an order of Messrs. Lubeck & Co. of San Francisco, upon us, for five hundred pounds, to be paid out of average money per Elvira.

In reply, we have, however, to inform you, that Messrs. Lu-beck & Co. have not yet forwarded such documents as will enable us to recover said loss from the underwriters, and wo must, therefore, defer the payment of the above order until we are in receipt of the necessary funds. As soon as such is the case we will inform you, and in the meanwhile

We are, etc. etc. Fred. Huth & Co.”

The subsequent correspondence shows that the Appellants received an order from Lubeck & Co. countermanding the credit to Respondents, at the same time, with documents relating to the Elvira, and that they collected the insurance by means of those papers, and disposed of it according to the orders of Lu-beck & Co.

Upon these facts, and the additional fact of a demand by the plaintiff for the payment of this sum and refusal, the question of the liability of the defendants in this action rests.

We think it not important to consider whether this order is [407]technically a bill of exchange. But we regard it as an equitable assignment of the funds in the hands of Hath & Co. to the payees; and Huth & Co. having notice of this assignment, would be liable to them for the amount, even in the absence of an express promise to pay it. It seems, however, that the letter of Huth & Co. contains, if not an express, certainly an implied, promise, to pay Pope & Sons. “ We must defer the payment of the above order until we are in receipt of the necessary funds.” This language, taken in connection with the receipt and detention of the order, seems equivalent to an express promise to pay in the event indicated.