564 , HARVARD LAW REVIEW The arguments in favor of the buyer are that the acceptance is condi- tional upon the delivery of the cotton, and otherwise imposes no obli- gation upon the drawee; and that the draft is conditional and not negotiable, so that the acceptor can have all the defenses against a bond fide purchaser which it has against the drawer-payee.^^ If the ac- ceptance expressly provided for the existence of the cotton or the genuineness of the bill of lading, the acceptor would clearly not be liable. The same result has been reached when the acceptance was "against endorsed bills of lading" for specified goods.^^ An acceptance in general terms would also be treated as conditional, if the drawer's order should require payment only in case of existence of the goods, since the acceptance is construed according to the tenor of the drawing.^* It was urged that the words "charge to the account of" specified cotton import such a condition in the drawing and consequently in the acceptance. At this point a distinction must be taken between classes of condi- tions. The reference in a draft to collateral which has been given as security for the draft or the mere attachment of collateral documents to the draft does impose a condition that the collateral shall be surren- dered to the drawee on acceptance,^" or, in some instances, upon pay- Appeal is right; that the question whether the bill is unconditional and negotiable is determined by the place of drawing (New York, or possibly Alabama), Amsinck v. Rogers, 189 N. Y. 252, 266, 82 N. E. 134 (1907), while the quasi-contractual right of the acceptor to revoke its acceptance and payment because of implied warranty, rep- resentation, mistake, or failure of consideration is determined according to thje only law which could create such a right, viz., that of England, where the acceptance and payment took place. The solution was rendered much easier by the court's finding that the law of England and the United States were the same. If the instrument was found to be conditional by American law, it would then have been necessary to con- strue § 72 of the Bills of Exchange Act, especially the clause which allows a foreign bill in the English form to be treated as vahd between English parties for purposes of enforcement. Would this also apply to the recovery of money paid under such a bill? See the remarks of Scrutton, L. J., in [1918] 2 K. B. 670, and those of Bail- hache, J., below in [1918] i K. B. 55. " Hannay v. Guaranty, 187 Fed. 686 (S. D. N. Y. 191 1); Guaranty v. Hannay, [191 7] I K. B. 43, 54, 55. But even if the draft were conditional and the acceptor could revoke its acceptance, it is doubtful if this ought to alter the decision. After notice of the forgery, the acceptor paid regardless of the alleged defense and contrary to the instructions of its principal, the buyer. As this was a voluntary payment, it could not be recovered, and the buyer's remedy would be against the acceptor. There is a further question, — even if the recipient of payment is liable to refund, why should the Guaranty Trust Company, a previous owner of the draft, be so liable? Pickford and Warrington, L. JJ., thought the buyer could not recover in any event. Guaranty v. Hannay, [1918] 2 K. B. 623, 648, 653 (C. A.). 1* Guaranty v. Grotrian, 114 Fed. 433 (C. C. A. 2d, 1902), affirming 105 Fed. 566 (S. D. N. Y. 1900). The correctness of this discussion is open to serious question, on the ground that the language of the acceptance was satisfied by the surrender of bills of lading for the specified goods, though forged. "Bills of lading" in a contract does not necessarily mean genuine bills of lading. A buyer can not complain if the drawee, his agent, when instructed to accept a draft with "bill of lading" attached does so on the faith of a forged bill of lading. Woods v. Thiedemann, i H. & C. 478 (1862); Ulster Bank :;. Synnott, I. R. 5 Eq. 595 (1871). The same construction applies to a letter of credit agreeing to pay drafts with a "bill of lading" for cotton attached. Young V. Lehman, 63 Ala. 519 (1879). See also Smith v. Vertue, 30 L. J. C. P. (n. s.) 56 (i860); 38 L. R. A. (n. s.) 747 note. " Guaranty v. Grotrian, supra.
- " Shepherd v. Harrison, L. R. 5 H. L. 116 (1871); National Bank v. Merchants'
