overview because maybe a basic point might be missed the heart of our appeal is a paragraph one paragraph in the district court's ruling on the breach of contract claim this is on page seventeen of the of the district court decision and it the district court as well letter of credit is a contract between the applicant and the bank there is no contract between any party and the beneficiary arising from the letter of credit and they say the district court cites a case called s che is a two page opinion very simple case and it involved a situation where the beneficiary was drawing on a letter of credit for some good sort of been shipped and the beneficiary was alleging that the bank had allowed to draws or a couple of draws to take place without demanding strict compliance with the letter of credit and so the beneficiary was arguing that that created a contract by implication from the conduct of the bank that it would not rely on strict compliance with the letter of credit in the district court and that's the case is no no the letter of credit simply says explicitly that any waivers of disk failure to strictly comply with the letter of credit does not excuse future discrepancies and so the district court in that case says there was no contract between the beneficiary and the bank it's not saying that under a typical letter of credit situation there is a letter of credit and is not a contract with the bank it does not say that and it doesn't hold that that's  claim which requires a question of whether or not that's in the case and then how you prevail at that did you appeal anything about a breach of contract but the the court is contend it was in the case and it was litigated but decided incorrectly the court rejected that claim based on this one paragraph saying there was no there was no contract between the bank district court does not address the youth called the u c c issues it does not address whether this is a letter of credit whether it's properly presented whether there was fraud by the beneficiary we create that argument in our brief and those findings are all on the following pages pages seventeen to twenty four of the district court conclusions in connection with the district court discussing the problem sorious promissory estoppel claim count three so the point i'm trying to highlight to the court is what we had to do was reconstruct had the court properly considered the u c c issues here is how the case should have come out but if you read for example where we have conclusions that the district court is making for example there's a very critical conclusion on the next page where the court is discussing the issue of whether the ministry could have reasonably relied on a promise to to make a cause of action for promissory estoppel based on the facts and the court throws in sentence that says there was no actual letter of credit in this case it describes the letter of credit as the forged document was never issued and as a result it is simply a fraudulent instrument the court has not then discussed the impact of that for example under under fraud by the beneficiary that would that would excuse the bank from honoring the letter of credit this is this is a sentence in its conclusions on we're not appealing the court's ruling on promissory estoppel so all of this to the extent it relates to count three is really irrelevant the issue is had the court not committed error in dismissing the claim the breach of contract wrongful designer claim what with the outcome what should the outcome have been trial right after trial as i would i would say you know before there was a motion before trial to specifically allege u c c claim correct and she denied that she said that you're too close to trial you're going to muck things up and we're going what you've got you should limine one of the motions in limine it was by the bank maybe logically following your she had rule previously we were going to have you see see issues in the case let's let's stick to my ruling the banks are right i judgment cleric that's what they were about and so i suppose that that's the counterclaims are cross claims we're presumably is judgement is entered in favor of the bank and against the ministry on the declaratory relief action but she didn't really go through the u c c stuff correct even though she knew had said earlier that in fact those issues i mean something was raised with regard to the that the us and not only the tragedy action required looking at the as you see right right and even highlight it each side had an expert the cases we cite are cases like that i mean one of the cases that we cite i think it's the murphy case involved a bank that have had a cease and desist order from the from the  was no reason for the bank to have known that at the time they entered into the transaction in the card even your client's ministry yes and parted with that three and a half million dollars they didn't there was no there is no i was raised or and i don't know why i had to ask did she have a raise i know that i don't think she focused on that because as far as she was concerned there was no as she put it there was no letter of credit correct your client specifically went to his office and asked him to do that and he did it correct so the question really is whether they under the u c c or otherwise were  rely on his position or statement and he was he was the regional manager that went into his office you know he had doors and security guards and looked like he was and and you have the independence principle there then you simply look at whether your clients were sufficiently responsible or ally and with regard to the letter of credit alone because the whole point interpreted even a breach of contract would have come down to the same same issue because the whole issue there is no there was no other contract other than the letter of credit other words if you read the if you read the complaint both attached a letter of credit and they say if we allege it was properly issued presented and not paid they say no it wasn't so there is no other something else some other breach of contract if it's for compass bank first of all it's compass bank position that the only thing appealed here was whether or not there was implied consent to try a different wrongful dishonor claim under fifteen b they did not appeal the breach of contract  y judgment or promissory estoppel claims from the reeves i want to answer one question you had to counsel about what the complaint pled first so i think there's a misunderstanding look at the complaint your honor very specifically does not plead u defenses available under the u c c or strict compliance or anything like that it simply says we didn't issue it it's the result of fraud and even if a court were to find that we did you still can find that you can't comply with it on its own terms because it's such action and not iran full dishonor and that's important for several reasons first of all on the eve of trial they move to him and we have jack did remember we're talking about implied consent so this is if you're going to evaluate consent it's not what our opponents did it's not really what the court did they're focused on emotion limits what we did we objected to the a minute complaint we moved in lemonade to exclude all evidence because we felt was a little chummy really specifically what a difference what difference the differences are nobody has really done that c so what what what kind of fine tuned pleading would have been necessary to come to have a different child and a child that was hacked or if i may just very briefly to step back a second to talk about letters of credit i mean letters of credit can typically involve three parties right so you're going to have a bank that's issuing it an applicant which is usually but not necessarily always a customer of that bank was going to make an application to the bank please do this letter of credit and then a best beneficiary in this case would have been m c w e the contract is between the applicants and the bank write the afgan act ask the bank to issue the letter of credit the beneficiary does not have any contractual relationship with the bank there's no consideration there's there's no deal at all in fact these two parties did not know each other before this complaint arose we knew nothing about each other and negotiated no arms length transaction at all so here though you don't have an applicant right hammett never came to the bank and made an application and asked compassed please let her issue a letter of credit in our behalf compass never issued a letter of credit wilkinson hammett created a fraudulent one in their office but compass never space signed the letter of credit and when asked whether it was an actual letter of credit he said it was on behalf of the back correct he was part of the fraud but he didn't i don't think there's any dispute he didn't no apparent no for all of the reasons and the court's findings to corner from they find him with regard to apparent authority i don't believe the court made a specific finding about a parent he's already your honor but the court did find it was an issue and if you look at all of the not or whether it was present played under the u c c rules about letters of credit but i think cuz i can either that it was because it's isil even if there isn't a letter of credit but that's what it is if i anything and this independence principle applies and i gather you one look at the underlying transaction you could your honor so it let's say in a different world we'd actually pled effect you know why they why this hearts guy went along with his hoe know that but that's exactly my point rhonda so during discovery the bank became convinced that arts was involved now we didn't further  necessary to prove that claim because it wasn't before the court in order to keep proceeding say the court grants leave to him and first thing i do is ask for leave to take more discovery i'm issuing subpoenas to mr art's bank i want to see did he get paid was he part of this how far does it go up the chain we never deposed mr ciriello which we would have done and asked for i don't know if the notice is in the record i think the motions to compel are concerning that there was much more discovery i would have done to defend against  c claim wrongful dishonor and i would have presented evidence or tried to course we never did it but i would have tried to prove that but the beneficiary was part of the fraud and it wasn't necessary for me to do so and so we didn't go down that rabbit hole  another point about the apparent authority is the issue with responding it's period or which is essentially their argument in their briefs that under a theory of responding it's very are we should we the bank company should be held liable for mr wilkinson thirty nine fourteen and essentially this court held that where an employee commit a torque and or misconduct you can't hold the principal liable essentially for that  intentional torture misconduct what happened in that case was there was a shipment an employee at the memphis shipping facility stole the goods and attempt to make  some people at the company who were being somewhat cautious and who turned down the first transaction and then said let me do with a letter of credit and then when they got this letter of credit they went to me which purported to be from the bank they went and checked up on it to find out whether it was actually from the bank and were told by a responsible person at the bank given if the wrong person i was it was actually right person in terms of the verification that it was  a legitimate letter of credit and the whole point of having a letter of credit as i understand it is that you don't have to worry about the transaction you don't have to worry about whether it was a fraudulent the underlying transaction what i mean they may have felt that there was something sca to have a letter of credit in order to have a letter of credit you have to have a bank issued it one way to distinguish all of the cases that they cite is in all of them a bank issued a letter of credit even if you know  accreditations i don't believe it was similar to this fact pattern i mean you did have a vice president who issued it and i don't believe the question was whether or not he was authorized to issue it instead it was that there was an injunction that said they could different if then here where mr wilkinson had no authority also that is not necessarily the same as a situation where you basically have active fraud in a law offices away from the were look at your honor it looks like a letter of credit i respectfully disagree i mean on its face you cannot comply with it it's impossible which is another reason they can never prevail i mean it says in order to comply for one thing because the actresses doesn't exist b that how the beneficiary know this just looking at it so i'll try to explain looking in so if you look at it it says in order to present it you must include the language in brackets and it doesn't have anything after that in brackets you cannot follow the instructions on the face of the document but frankly if i had gotten that i would have thought well the language in brackets is probably basically like the address or the directions  saying did not happen they still would have failed if you look at the coral petroleum case out of the fifth circuit i believe it's persuasive the bank issued a letter of credit but there was a mistake in the letter of credit by the bank and part of that could be the beneficia or the afghans fault at all you know everyone's working on it together the honor was refused and it was upheld because it was impossible possible to comply with the letter of credit on the face of the document because of the mistake and the court said the beneficiary essential has to pay the piper because it is assumes the risk of this although it's not supposed to assume the risk of the underlying transaction right there were a letter of credit which there is not  does assume the risk of the letter credit so you have to look at the document you have to do your due diligence and make sure this is a valid letter of credit on its face i can comply with and here you could you can't and as to the you  know address issue with all due respect it took mr hodge about thirty seconds to a minute to find out where you actually dealt with the letter of credit department when he wanted to present it and was running into trouble to get a good well  to correct my point and he didn't occur to him to looking it up until he wasn't sure wasn't getting any response my point being though the when you're looking at a letter of credit on its face the fifth circuit has howl that there is there has to be strict compliance and that if there is a mistake of the letter of credit and it's impossible to comply with that it's invalid and the dishonor is correct because you assume the risk of essentially the letter of credit itself not the underlying transaction mind you're not talking about the independence principle or all the other stuff that happened but the letter of credit how is the beneficiary supposed to guard against any deformities or problems will come when you read it or you can consult with a lawyer which is typical the you can consult with another bank which is often the case there are a number of things you can and should do before issuing a three and a half million dollar loan that wasn't done here and again a lot of that's in the record in summation is first of all i want to point out with respect to mr wilkinsons authority and issuing the letter of credit we point out that there was a pretrial discovery sanction order to the complaint joining the issue the complaints it's a declaration of the bank has no obligation in among the things that they're point out is a day allege there was improper presentation of the letter of credit know but i think it was clear that he did have a paratha already i think for all the factual reasons that you point out what more can you do but go into the yes but we don't have a finding and it appears that we don't have a finding made because nobody asked or the district judge will maybe finally coral coral petroleum yes it does deal with strict compliance which the bank could have done you the beneficiary has to strictly comply with the darkness to be presented but they didn't do that here in other words the first two presentations there were no objections based on any defect in the instrument that they presented and so they waived them under the preclusion principle doesn't even that i would say doesn't even purport to be a letter of credit but the court said it was sufficiently am paid us to allow the case to go forward to try it here we have an instrument that says irrevocable stand by a letter of credit it has the basic principles of a letter of credit which the bank says we hereby establish our irrevocable stand by letter of credit in your favor it states the amount which would be available by payment of your draft drawn on site those are the essential elements of a letter of credit and these details within the language of this would be types of things that maybe could be raised if you objected to the presentation but there was no objection to the presentation in this case