32. Following Foley's telephone conversation with Shannon, that same day Foley relayed to Eason and Livers the substance of his conversation, including the specific reasons for dishonor stated by Shannon.
33. On March 30, 1987, Continental Illinois sent to Occidental and the Liquidator, via Airborne Express Mail, written confirmations of Perez's telephonic notice of dishonor. These conformations noted the language discrepancies set forth in Finding 20 above. Occidental and the Liquidator received those written confirmations on March 31, 1987.
34. On March 30 and March 31, 1987, Occidental and the Liquidator had the means, had they chosen to use them, to resubmit certifications containing the language "aforementioned bond(s) or undertaking(s)" and "any such bond(s) or undertaking(s) as aforesaid," instead of "any bond(s) or undertaking(s)," prior to 5:00 p.m. CST on March 31, 1987. Those means included telex, electronic fascimile, and air travel.
35. On March 30, 1987, Occidental and the Liquidator did not attempt to resubmit certifications containing the language "aforementioned bond(s) or undertaking(s)" and "any such bond(s) or undertaking(s) as aforesaid," instead of "any bond(s) or undertaking(s)."
36. On March 31, 1987, Occidental and the Liquidator did not attempt to resubmit certifications containing the language "aforementioned bond(s) or undertaking(s)" and "any such bond(s) or undertaking(s) as aforesaid," instead of "any bond(s) or undertaking(s)."
37. The letters of credit expired by their terms at the end of business on March 31, 1987. The beneficiaries did not make a conforming draw before expiration.
38. In 1988 the Liquidator assigned to Occidental all of Union Indemnity's right, title and interest in the letters of credit.
CONCLUSIONS OF LAW
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (1982), and venue is proper in this court. On June 23, 1989, this court entered summary judgment in favor of Continental Illinois and against Occidental on two issues: first, that Continental Illinois did not act wrongfully in dishonoring Occidental's unilateral draw of February 6, 1987; second, that the bank had good grounds for dishonoring the attempted joint draft of Occidental and the Liquidator of March 25, 1987. This left two issues for trial: did Continental Illinois give Occidental timely and proper notice of its reason for dishonoring the March 25, 1987 attempted draw, and did Occidental consent to amendment of Letter of Credit No. 6328290. See Occidental Fire & Cas. v. Continental Ill. Nat., 718 F. Supp. 1364 (N.D.Ill. 1989).
As noted in this court's prior ruling, Continental Illinois had to give notice to Occidental no later than March 30, 1987, of its decision to dishonor the March 25, 1987 drafts. Notice under Article 8(c) of the International Chamber of Commerce's Uniform Customs and Practice for Documentary Credits (Rev. ed. 1974) (hereafter "UCP"), a document which governed the letters of credit at issue in this case, includes "stating the reasons therefor" and "must, without delay, be given by cable or other expeditious means . . . ."
The court has found that Samuel Perez, an officer in Continental Illinois' Letter of Credit Department, gave notice of dishonor and the reasons for dishonor to Occidental by telephone on the morning of March 30, 1987. See Finding 29. Perez's testimony was credible in all respects, and the court gives it full weight. Occidental for its part does not dispute that telephonic communication is an expeditious means of communication under the UCP. The company does dispute, however, whether Continental Illinois had a duty to communicate its notice sooner. Occidental does not present any authority that the UCP's exhortation to avoid delay overcomes the statutory presumption of Ill.Rev.Stat. ch. 26, para. 5-112(1) (1987), that a bank which has acted within three business days has acted in a timely fashion. See William D. Hawkland and Tom L. Holland, 5 Uniform Commercial Code Series § 5-112:01 (Article 5) (1984) (three days reasonable time under UCP). Nevertheless, based on the evidence presented, the court finds that Continental Illinois acted with reasonable speed in this case. The bank did not decide to dishonor the March 25 draw until late in the day on March 27, 1989. It notified Occidental early on the next business day. See Findings 28-29. The bank did not delay unduly in notifying Occidental of the nonconforming language of the March 25 drafts.
Occidental argues that notwithstanding the bank's proper notice to Occidental on March 30, 1987, it failed to notify the Liquidator, and thus its notice was defective. Occidental argues that § 5-112 of the UCC implies that a bank which is presented with a draft must transmit its notice of dishonor to the presenter of the draft. Occidental submits that the presenters in this case were it and the Liquidator, as each signed the draft documents. The term "presenter" in § 5-112 has a specific meaning, however: it is "any person presenting a draft or demand for payment under a credit . . . ." Ill.Rev.Stat. ch. 26 at para. 5-112(3). In this case, Occidental presented the draft, not the Liquidator. See Finding 25. The bank's notice to Occidental thus satisfied whatever requirements are implied within § 5-112 as to the proper recipients of notice.
The court now turns to the issue of whether Continental Illinois properly amended Letter of Credit No. 6328290 in October 1984. In the court's prior ruling, the court suggested that if it were to rule that Continental Illinois gave proper notice to Occidental of its dishonor of the bMarch 25, 1987 draw, this issue would be moot, as Occidental and the Liquidator never would have made a proper demand on the bank under either the original letter of credit or the amended version. See Occidental Fire, 718 F. Supp. at 1371. Occidental, however, directs the court to § 5-115(2) of the UCC, which states:
When an issuer wrongfully cancels or otherwise repudiates a credit before presentment of a draft or demand for payment drawn under it the beneficiary has the rights of a seller after anticipatory repudiation by the buyer under Section 2-610 [of the UCC] if he learns of the repudiation in time to reasonably avoid procurement of the required documents. Otherwise the beneficiary has an immediate right of action for wrongful dishonor.