Page:Harvard Law Review Volume 32.djvu/69

Rh set forth could be an acceptance, and so if such performance became impossible, we should simply have the case of an offer which could not be accepted. The acts of the seller-addressee in the course of manufacture or filling his order under the contract would not really be acts preliminary to acts of acceptance but would be no more than acts in performance of the sales contract. Hence addressee's recourse would be an action as seller against buyer on the buyer-seller contract. Would the case be different on a theory of money received and held to the use of the addressee, or on a theory of the letter of credit as a self-sufficing instrument of the law merchant? If money is received and held to the use of another on an express condition precedent, it is not easy to see how that condition may be dispensed with. If one of the parties made performance of a condition impossible, he might be said to have "waived" it. But such would not be likely to be the case. It would seem that the addressee should consider the risk before he acts on the letter, and if he has reason to fear difficulty, should insist on provisions in the letter for extension of the credit on given contingencies.

It is true there is authority in New York, where there has been a tendency to deal with express conditions as if they were conditions implied in law, which seems to indicate that where there is a debt between holder and addressee, incurred by holder through use of the letter, the issuer may be liable although performance of the conditions is not possible. In Krakauer v. Chapman the letter of credit read as follows:

X ordered goods to the amount of $1000. Addressee did not have all the goods required to fill the order at the time, but delivered $900 worth of goods at once and the balance later. When the last delivery was made X drew upon the issuer for half the order and the bill was accepted and paid. Afterwards X absconded and after unsuccessful attempts to collect from him, the addressee after eight months drew on issuer for the balance. When the first