Before WATERMAN, SMITH and MARSHALL, Circuit Judges.
Plaintiff appeals from a judgment of the United States District Court for the Southern District of New York, Bryan, J., denying plaintiff's motion for summary judgment and granting defendant's cross-motion for summary judgment. This action arises out of the payment by defendant, Bankers Trust Company (Bankers), of the face value of a letter of credit in the amount of $60,500 to the named beneficiary, Richard Sica (Sica), designated by plaintiff, Dulien Steel Products Inc. (Dulien), in a letter of credit issued on its instructions and confirmed by defendant. Dulien seeks to recover from Bankers the amount so paid. Dulien is a Washington corporation; Bankers a New York corporation. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332.
Dulien makes two claims. The first is that since Bankers repeatedly requested instructions it should not have paid Sica in disregard of instructions not to pay. The alternative claim is that Bankers was negligent in failing to give notice that it would disregard these instructions and pay Sica. Involved in this latter claim is an assertion of some form of estoppel against Bankers in that the requests for instructions led Dulien to believe Bankers would not pay Sica.
Dulien moved for summary judgment pursuant to Rule 56 F.R.Civ.P, 28 U.S.C.A., on its first claim only. Bankers cross-moved for summary judgment on both claims. The district court denied plaintiff's motion and granted defendant's motion. We affirm.
The motions were submitted on affidavits supplemented by depositions. With one exception, there is no dispute as to the facts. Sometime in early 1956 Dulien entered into a contract to sell scrap steel through the Office Commun des Consummateurs de Ferraillie (O.C.C.F.), the purchasing authority for the European Iron & Steel Community. Payment to Dulien in an amount in excess of $3,000,000 was to be accomplished through several letters of credit established in its favor. An organization known as Marco Polo Group Projects, Ltd., Tangiers (Marco Polo), was apparently entitled to a commission from Dulien for having arranged the transaction. Payment to Marco Polo was to be made through two letters of credit, only one of which is involved here.
On June 29, 1956, Seattle-First National Bank (Seattle), Seattle, Washington, sent its irrevocable letter of credit to Bankers Trust Company in the amount of $60,500. The letter of credit was addressed to Richard Sica and authorized him to value on Bankers for the account of Dulien to the extent of $60,500. It provided that this money would be available to him on his "simple receipt" reading as follows:
"Received from The Bankers Trust Co. of New York the sum of Sixty Thousand Five Hundred Dollars U.S. Currency, for services rendered through the Marco Polo Group Projects Ltd. of Tangier' * * *"
And upon the following condition:
"* * * and a written notification from The Seattle First National Bank of Seattle, Washington, * * * and/or an official telegraph advice from The Seattle First National Bank at Seattle to The Bankers Trust Company, Foreign Department, New York City, wherein such written notification &/or telegraphic advice indicates, reveals &/or confirms that the Dulien Steel Products Inc. of Washington, Seattle, Washington, has negotiated official documents for payment against any of the Letters of Credits established to the name of Dulien Steel Products Inc. of Washington, Seattle, Washington, which Letters of Credits cover Contract No. 28/Namc as issued to the name of Dulien Steel Products Inc. of Washington, Seattle, Washington, by the O.C.C.F., at 36 Rue Ravenstein, Bruxelles, Belgium - "
The letter of credit also provided:
"Payment in full as outlined herein shall be made without question * * * Drafts to be negotiated not later than September 30, 1956."
"Except as expressly stated negotiations under this credit are subject to the uniform customs and practice for commercial documentary credits fixed by the Thirteenth Congress of the International Chamber of Commerce."
On July 10, 1956, Bankers confirmed the obligation by advising Sica that "We [Bankers] confirm the credit for its present validity of September 30, 1956 and for its present amount of $60,500.00 and thereby undertake that all drafts drawn and presented as specified in the credit will be duly honored." Bankers' confirmation charge for ...