Page:Harvard Law Review Volume 32.djvu/70

36 36 HARVARD LAW REVIEW draft was made, issuer had funds of X sufficient to meet the whole amount of the order, but at the time he was notified that there was an unpaid balance, he no longer had funds of X. A judgment for the addressee was affirmed on the ground that as the drawing of a further draft by X became impracticable because he had absconded, the issuer was obligated to pay for the goods in another way. Two of the five judges dissented. As the letter appears to contemplate one draft for the amount of one order, and one draft had been drawn and honored and the issuer, after eight months, had ceased to hold funds for X, one may well ask whether the circumstances did not amount to a representation to the issuer that the credit had been fully used and so raise an estoppel in favor of the issuer who had adjusted his accounts with the holder on the faith of this apparent state of things. Perhaps this was what one of the dis- senting judges had in mind in saying that the second draft was not drawn in a reasonable time. At any rate the soimdness of this de- cision of an intermediate appellate court is too questionable to justify reliance upon it for so doubtful a doctrine as one that courts may make parties' transactions over for them by dispensing with express conditions precedent. In Krakauer v. Chapman performance of the conditions of the letter was impracticable because the condition called for the draw- ing of a draft by a party who had absconded. Another case more likely to arise may occur where the letter is conditioned in sub- stance upon performance of a contract between buyer-holder and seller-addressee and the holder for any reason countermands his order or refuses to go on with the contract. Here after such a breach the law would not permit the seller-addressee to proceed with further performance of the contract, and thus performance of the conditions of the letter would become impracticable. In such cases, if the letter is treated as acknowledging that money of the holder has been received and is held to the use of the addressee upon condition, and a breach of contract by the holder renders it impracticable for the seller-addressee to go on and hence im- practicable to perform further the conditions of the letter, how far is the estoppel to deny that nwney of the holder is in the issuer's hands, raised by the addressee's acting on the faith of the letter, available to the addressee for the purpose of reaching such fund by attachment or garnishment in an action on the contract by ad-