concurring and dissenting, in part:
While initially I was inclined to affirm the district court’s judgment, the ably prepared majority opinion and my independent research of the law convinces me that the issuer (First National Bank of Holly Hill) of the letter of credit has no available defense on the issue of liability as far as the beneficiary (Airline Reporting Corporation) is concerned. In a minor detail, I do dissent from the majority’s ruling on the computation of damages.
The particular problem presented in this case is that three of the four claims1 giving rise to the default under the terms of the letter of credit occurred solely by reason of the actions of Abbott in issuing drafts or checks on his area bank which were returned for insufficient funds. In the interim period, and prior to the default by reason of drawing drafts or checks which were returned for insufficient funds, Wilson, doing business as Wilson Travel Service, had completely withdrawn from the travel agency business. The home office, at Summerville, South Carolina, had been abandoned by Wilson in favor of his wife, Betty Wilson, when Wilson walked out of the office in May 1984, because of the marital separation involving Betty Wilson. Wilson’s interest in the branch located at the Charleston Airport was terminated, effective June 6, 1984, by a contract of sale between Wilson and Abbott dated July 9, 1984, when Wilson sold his interest in the Charleston Airport business to Abbott, and Abbott sold his interest in the Columbia Airport branch agency to Wilson. In August 1984, Wilson sold his Columbia Air*831port travel agency business to Pal Traveling Tours in Columbia.
The majority apparently does not think it significant to discuss the later authorized and accepted change of ownership of the home office from Wilson to Betty Wilson. It clearly appears that the change of ownership of the home office was approved and accepted by ARC at some time prior to December 14, 1984. The Air Traffic Conference Change of Ownership Application, signed by Wilson and Betty A. Wilson, as the former and proposed new owner respectively, was received by ARC on some date after September 30, 1984. Plaintiffs Ex. 33 demonstrates that the Air Traffic Conference Verification of Accountable Documents was verified by ARC on November 13, 1984. Betty Wilson had posted a bond for her solely owned corporation, Wilson Travel Service, Inc., which bond was effective September 1, 1984. Under Resolution 90.3, as amended in July 1984, pertaining to change of ownership, the Administrator is given no sooner than 30 days, and no more than 60 days, after receipt of the application, within which to execute an agreement with the new owner. While Resolution 90.3 is, in itself, contradictory in many respects, it is obvious that there was a legal and binding obligation upon ARC, through its Administrator, to execute the new agreement with Betty Wilson as all of her papers were in perfect order, her bond had been posted, and she was operating as Wilson Travel Service, Inc., with the full approval of ARC and its Administrator. This is evidenced by Plaintiffs Ex. 36, a mailgram dated December 6, 1984, sent to Wilson Travel Service, doing business as Airport Travel Service (being solely operated by Bruce Abbott since June 6, 1984), in an attempt to complete all forms, no later than December 14, 1984, to effectuate the Charleston location of Wilson Travel Service, doing business as Airport Travel Service, as the new home office of Wilson Travel Service. In this mail-gram, Mellott of ARC stated that “Failure to submit proper forms by deadline [December 14, 1984] will result in removal of all ticket stock and airline plates since we must honor ownership chg [change] of Home Office.”
ARC was in a bind. It had received in proper form, strictly in accordance with the many requirements of the “Passenger Sales Agency Agreement,” all of the required documents and bond from Betty Wilson and her newly formed corporation, Wilson Travel Service, Inc. The sixty-day period for approval by the Administrator would be reached by December 14, 1984.2 Despite the many provisions of the Sales Agency Agreement, there was no apparent resolution of what happens to a branch office when the home office no longer exists. And if the home office no longer exists, what is the status of a letter of credit given by the home office for the benefit of the home office and all of its branches?
If this litigation involved only ARC and Hugh Wilson, Jr., doing business as Wilson Travel Service, Wilson may have had a defense to the dishonored checks drawn by Abbott. But this case involves only ARC and the bank, based upon the letter of credit issued by the bank to ARC’S predecessor in interest. The only exceptions to the issuer’s duty to honor documents which on their face comply with the terms of the credit are (1) the failure of certain doc*832uments to conform to certain specified warranties, (2) the presentment of “forged” or “fraudulent” documents, and (3) there is “fraud in the transaction.” Code of Laws of South Carolina, Yol. 12, § 36-5-114(2); O’Grady v. First Union Nat. Bank, 296 N.C. 212, 250 S.E.2d 587, 600 (1978). It is fundamental that the letter of credit contract, unless express conditions are incorporated therein, be completely independent of both the credit agreement between the issuing bank and its customer and the contract of sale between the beneficiary and the customer. Consolidated Sales Co. v. Bank of Hampton Roads, 193 Va. 307, 68 S.E.2d 652 (1952).
This leaves for determination whether ARC was guilty of “fraud in the transaction” when it effectively did away with the home office prior to closing down the branch office. It is conceded that Wilson never told the bank, nor did the bank inquire, as to whether the letter of credit was confined to the operation of the Summer-ville home office. The letter of credit was issued on the basis of Wilson’s credit with the banking institution and the letter of credit did not limit its effect to the Summerville office. As stated in Decatur Bank v. St. Louis Bank, 21 Wall. (88 U.S.) 294 22 L.Ed. 560 (1874), where the letter referred only to the shipments of cattle, but the drafts sued on were against shipments of hogs:
Like all other contracts it must receive the construction which is most probable and natural under the circumstances, so as to attain the object which the parties to it had in contemplation in making it.
Unless otherwise specified the customer (Wilson) bears as against the issuer all risks of transmission and reasonable translation or interpretation of any message relating to a credit. Code of Laws of South Carolina, Vol. 12, §§ 36-5-107(4), 36-5-109(1).
Because of the underlying Sales Agency Agreement, I feel that ARC properly concluded that the Letter of Credit would remain in effect until the branch office had been officially closed by the removal of all plates and tickets by ARC and that, during the effective dates as of the letter of credit, Wilson remained liable for Abbott’s defaults, as Wilson knew, or should have known, that the letter of credit covered any branch office which he owned insofar as the ARC records were concerned; there having been a specific requirement that any change of ownership would have to be approved by ARC. This reasoning clearly appears to be within the intention of Wilson and ARC. Thus, I conclude that the acts of ARC fall short of constituting “fraud in the transaction.” Itek Corp. v. First Nat’l. Bank of Boston, 730 F.2d 19 (1st Cir.1984). As pointed out by the majority, whatever ARC did, or failed to do, is not so egregious in nature as to vitiate the entire underlying transaction so that the “legitimate purposes of the independence of the issuer’s obligation would no longer be served.”
DAMAGES
It is true that § 36-5-115(1) of the Code of Laws of South Carolina does provide for the recovery of the “face amount of the draft or demand together with incidental damages under § 36-2-710 on seller’s incidental damages and interest....” In this case ARC drew its draft in the sum of $50,000 under the theory that future losses, in addition to the $18,827.80, may be discovered. The amount sued for was $18,-827.80, which was later increased, by order of court, to $25,243.38. This latter figure was the “demand” of ARC. While the letter of credit did provide the language quoted in the majority opinion, the action before the court is for the wrongful dishon- or of the draft drawn on the letter of credit, and not an action on the letter of credit itself. Moreover, to permit a judgment for $50,000 (the face amount of the draft), together with incidental damages and interest, would result in the bank paying at least $50,000 to ARC, and giving ARC the privilege of holding this sum for a period of six months, without interest, before repaying the bank the difference between the amount demanded and the face amount of the draft in the sum of $50,000. Where the “demand” is less than the “face amount of the draft,” I must conclude that *833the amount sued for is controlling. On the subject of incidental damages, the majority makes no suggestion as to whether this includes attorneys’ fees although it is clear from the record that ARC is claiming same. The letter of credit makes no mention of attorneys’ fees. While South Carolina law may be to the contrary, a case arising under similar circumstances involving Tennessee law held that attorneys’ fees are not recoverable. Bossier Bank & Trust v. Union Planters Nat. Bank, 550 F.2d 1077, 1079 (see Appendix B, pp. 1083, 1084) (6th Cir.1977).
For the foregoing reasons, I respectfully dissent from that portion of the majority opinion which deals with the damage issue. I concur on the issue of liability for the amount claimed in the complaint as amended.
. The drafts were issued as follows:
Report Period Date of Draft (Check) Amount
12/23/84 1/02/85 511,260.12
1/06/85 1/16/85 3,849.50
1/13/85 1/13/85 3,717.68
TOTAL $18,827.80
On March 8, 1985, ARC drew its draft against the letter of credit for the full amount of the letter of credit, same being in the sum of $50,-000.00. The original complaint, filed September 17, 1985, demanded judgment in the sum of 118,827.80. On February 13, 1986, leave was granted to file an amended complaint to assert additional damages and, at that time, plaintiff asserted additional damages of $6,415.58 due for unreported airline tickets sold in May and June, 1984. The plaintiff also claimed incidental damages, interest, attorneys' fees and costs. While this latter item of $6,415.58 was not presented to the bank at the time the draft on the letter of credit was issued, this potential defense was clearly waived by the bank.
. Plaintiffs witness, South, testified (TR. 32) that the application for change of ownership from Hugh Wilson Jr., doing business as Airport Travel Service, was received "in October, or thereabouts, of 1984,” transferring the ownership to Wilson Travel Service, Inc., wholly owned by Betty Wilson. He then stated (TR. 33) that “No Home Office can be transferred without also transferring ownership of the branch location,” but there is nothing in the Handbook or Passenger Sales Agency Agreement supporting this statement and, as South testified, "We had to resolve that issue before ownership change could take place.” In July 1984, ARC had received a Notice of Proposed Change of Ownership and sent to Airport Travel Service in Charleston the forms necessary to effectuate this change, but these forms were never filed. Abbott claims that he signed the forms and sent them on to Wilson. Wilson claims that he never received the forms. On December 18, 1984, ARC made its demand of the Charleston branch for the surrender of the tickets and plates. It was on January 11, 1985, when the branch was officially closed.