I dissent. The appellant Bank gave three so-called letters of credit to the plaintiff. No problems arose over the first two. It- is the third letter which gives rise to this appeal. It was, so far as material, in words as follows: “We have agreed ... to pay all of your collection drafts upon presentation or due date for a period of ninety days . . . .”
Thereafter no collection drafts were ever presented. for payment. Merchandise was shipped to Space Metals, Inc., accompanied by invoices, with copies being sent to the Bank. The Bank transmitted to plaintiff written advices to the effect that the copies of invoices were returned unpaid.
The law is to the effect that a letter of credit must be strictly complied with before the Bank ⅛ liable. The law is set forth in SO Am.Jur.2d, Letters of Credit, and Credit Cards, § 21, as follows:
If the letter of credit contemplates the presentation of specified documents, the liability of the bank issuing the letter of credit depends on the showing as to whether the designated documents were forwarded or duly presented, and an issuing bank is required to pay or is exonerated from paying on a letter of credit according to whether the documents presented to it conform to what is required by the letter .
The trial court sitting without a jury found that the Bank had waived the requirement of the presenting of a collection draft, although waiver was not pleaded. It is an affirmative defense and must be set forth affirmatively in order to be a defense.1
I would reverse the judgment and award costs to the appellant.
. Rule 8(e), U.R.C.P.