MULHALL

v.

KEENAN ET AL.

Mr. Justice SWAYNE delivered the opinion of the court'.

The defendants in error, under the name of Keenan & Co., sued Mulhall to recover a balance alleged to be due to them upon a draft drawn by him and accepted and paid by them;,! The parties waived the intervention of a jury, and submitted the cause to the court. The court found for the plaintiffs, and assessed their damages at $2336.26. Judgment was entered accordingly. There was no special finding of facts. A bill of exceptions in the record shows, that during the progress of the trial, the defendant excepted to the admission of evidence offered by the plaintiffs, and to the rejection of evidence offered by himself. Three specific errors have been.assigned in this court.

(l.)'Tbe admission in evidence of the letter of Mulhall— of the 12th of July, 1870 — to the plaintiffs.

. (2.) The exclusion of certain entries on the defendant’s books.

(3.) The admission of the testimony relating to margins.

The second assignment has been virtually abandoned, and need not, therefore, b.e considered. It is too clear to admit of doubt that the ruling to which ,jt relates was correct.

The letter of the 12th of July, 1870, stated, among other things, that Mulhall,might buy more cattle before Tamblyn got back. It said nothing o/ Tamblyn having any interest in such purchase, or’iu any further purchase the defendant might make., Mulhall testified that the cattle were shipped to Keenan & Co., in his name. When consulted by them about the disposition of the cattle unsold, his authorized agent directed them to be shipped to New York. The draft was drawn after the cattle were shipped to Chicago. No explanation whatever accompanied it to Keenan & Co. Mulhall insisted that the cattle belonged to Tamblyn, subject to his advances upon them, and that the advances were made and the draft drawn upon the faith of the letter of credit addressed to Mulhall in favor of Tamblyn, which Keenan & Co. had given to the latter. Keenan & Co. claimed that they believed, and, under the circumstauces were warranted in believing, that the cattle belonged to Mulhall, and that the draft was drawn solely on his .own account. The letter in question was an important link in’the plaintiffs’ chain of evidence touching this issue. As such, it was clearly competent and proper to be received in evidence. Its weight and effect, in connection with the other testimony upon the subject, were questions for the jury. There was no error in this ruling.

Whether it was incumbent upon Mulhall,'when the draft was forwarded, to notify Keenan & Co. that it was drawn in pursuance of the letter of credit, and that the cattle were Tamblyn’s, is a point not raised and upon which we need* therefore, say nothing.*

The third assignment remains.to be considered. . It relates to the admission of testimony as to the margins.

The letter of credit authorized Mulhall “ to' make advances on any stock consigned ” by Tamblyn to Keenan & Co., and' to “draw sight or time drafts when there was sufficient margin.” The limits within which the authority to draw was given, were thus distinctly marked. Beyond them it did not subsist, and Keenan & Co, were iii no wise liable to the drawer. The case presented four questions:

Whether the draft was drawn by Mulhall for his own account.

If not, whether he was estopped from denying that it was so drawn.

Whether it was drawn in pursuance of the letter of credit.

If so drawn, whether there was such margin in respect to ' the value of the cattle, as conformed to the requirement of the letter of credit, and made it obligatory on Keenan # Co. to pay the draft.

In the view presented by the last inquiry, the testimony was clearly admissible.

This is not denied by the counsel for the plaintiff in error; but it is insisted that this phase of the case took the defendant and his counsel by surprise, and that they did not come to the trial prepared to meet it. '

It is insisted further, that this proposition is not consistent with the bill of particulars.filed with the declaration. The bill of particulars is-made up of the debit of the draft in question, sundry credits, and tbe balance claimed by Keenan & Co. It is alike consistent with either phase of the case. If the plaintiffs were entitled to recover in any view of the facts to be developed upon the trial, the amount to be recovered was thus shown. The ground or grounds upon which the recovery was to be iusisted upon were in nowise indicated. That was not the purpose of the paper. If there were surprise, the only remedy for it was a motion for a new trial. Such a motion was made, supported by the affidavits of Mulhall, his counsél, and others, and was overruled by the court. With that motion and its result we have nothing to do. They cannot be made the subject of review by this court. Our'duty is to ascertain whether there is any error in the record of which we can take cognizance. We have found none, and the judgment is Aeeirmbd.

*

Lent v. Padelford, 2 American Leading Cases, note, 59 and post.