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"It's a letter of credit, for goodness' sakes," said the exasperated Luther Martin. "Your bank issued it. And now you're telling me you won't honor its provisions?"
"I think you're the one who's not honoring the letter of credit's provisions," replied Dorothy Weatley of First American Bank.
"What do you mean by that?" asked Martin. "I just presented you with a draft ordering your bank to pay."
"Yes," said Weatley. "But where are the rest of the documents that the letter of credit calls upon you to present?"
"Right here," said Martin, shoving a file of papers into Weatley's hands.
"There's the problem," Weatley said. "These are copies."
"So what?" answered Martin. "Copies or not, they clearly show the amount of the letter of credit, the parties involved, and your obligation to pay."
"But it clearly states in the letter of credit that the Bank will honor your demand upon presentation of the original letter of credit and the original promissory note," said Weatley. "You have neither."
"But I lost them," retorted Martin. "Surely you can't withhold payment on the letter of credit just because of that small mistake."
"We can, and we will," said Weatley.
Is Weatley correct? What was the court's decision?
Yes.
First, the letter of credit was not ambiguous. It called for the original letter of credit and the original promissory note to be given to the Bank.
Second, the failure to do so was not, according to the court, "a de minimis variance."
In other words, it was significant that the originals be turned over. For instance, the originals provided some control that the terms of the letter of credit and the promissory note had not been modified when they were photocopied. And if Martin had not been required to return the original promissory note, he could have negotiated it to a third party for value.
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