(dissenting).
I respectfully dissent from that part of the majority opinion which affirms the judgment against Liberty. The trial court rightfully held that the drafts sued upon by Bank of America were not in conformity with the letter of credit, and that Liberty was not required to pay them. However, it held that Liberty, separate and apart from liabilities arising out of the letter of credit and the drafts drawn thereunder, is liable to Bank of America for the latter’s payments to the Union Bank of Geneva, Switzerland. This holding is based upon a telegram of Liberty which authorized the payments to be made by the Swiss bank.1
Liberty’s dealings were entirely with Bank of America, which was servicing the transaction for a commission. The latter was experienced in the handling of foreign financial transactions and employed experts for this purpose. It advised Liberty prior to the sending of the telegram in question that payment in Switzerland would not in any way affect the requirements of its letter of credit. It advised the president of Anderson-Prichard Company that it would not be required to pay until it had an opportunity to examine the required documents, as they would be flown to Liberty immediately after receipt. This is the construction the parties put upon the effect of the telegram and it should control. McDowell v. Droz, 179 Okl. 119, 64 P.2d 1210; Lackey v. Ohio Oil Co., 10 Cir., 138 F.2d 449; Simon v. H. F. Wilcox Oil & Gas Co., 10 Cir., 123 F. 2d 25.
It is inescapable from all the evidence that Bank of America, Liberty, and Anderson-Prichard understood this, as no request for payment was made until the documents were delivered to Liberty. The Bank of America had the identical requirements in its letter of credit to the Swiss bank, still, upon cable notice, it credited the account of the Swiss bank with the payments which it had made without examining the required documents and without notifying Liberty that such credits were being made. Thereafter, the Bank of America never took the position that Liberty was obligated to pay the credits before it had had an opportunity to determine the sufficiency of the documents.
The evidence is without conflict that it was not the intention of either the Bank of America, Liberty, or Anderson-Prichard that there should be changes in the conditions of the letter of credit except that payment was to be made in Geneva rather than San Francisco. Admittedly, the conditions of the letter of credit were not complied with. The effect of the trial court’s holding is that not only was the place of payment of the money changed by the telegram, but all the other protection carefully set forth in the letter of credit was eliminated. The Bank of America gave credit to the Swiss bank without requiring it to comply with the conditions of the letter. It alone dealt with the Swiss bank and it alone could require compliance with its letter of credit to that bank before payment. It alone could have protected it*842self from loss caused by the default. It is my opinion that the telegram of December 29, 1950, did not, and was not intended to, relieve Bank of America of its responsibility to produce the documents required by the letter of credit before it could require payment from Liberty. When the transaction is eonsid-ered as a whole, it appears to me that the trial court required the wrong party to suffer the loss by giving a strained meaning to the words of the telegram,
I would reverse the judgment against Liberty.
. The pertinent portion of this telegram reads:
“Re our letter of credit dated December 15, 1950.
“Authorize payment Geneva on receipt of cable advice from Union Bank of Geneva, Switzerland, that they hold documents required your letter to them December 20, 1950, but with rail weight certificate instead of mill weight certificate and API monogram waived.”