based First Presby. Church Riordan v. the McCormick Case (Ill.) upon apra, cannot be deemed of any force Illinois. d. New York cases. New York courts in a number of cases ave repeatedly said that the rule that simple contract made for the benefit fa third party may be enforced by sa third person in his own name es not apply to instruments under seal; that no one but a party to a contract under seal may sue upon it. Spenerv. Field (1833) 10 Wend. 87; Tylee M'Lean (1833) 10 Wend. 374; Henrius v. Englert (1893) 137 N. Y. 488, #X. E. 550; Case v. Case (1911) 203 NY. 263, 96 N. E. 440, Ann. Cas. GB, 311; Nevins v. Gardner (1877) N. Y. City Ct. Rep. 407; Smith v. erce (1899) 45 App. Div. 628, 60 N. Supp. 1011; Williams v. Magee 1302 76 App. Div. 512, 78 N. Y. Supp. affirmed in (1903) 177 N. Y. 534, N. E. 1133; Ivy Courts Realty Co. Barker (1911) 71 Misc. 460, 128 N. Sapp. 715; Buge v. Newman (1908) 1 Misc. 84, 113 N. Y. Supp. 198, afrmed in (1909) 132 App. Div. 928, N. Y. Supp. 1097; Barzilay v. Lowhal (1909) 134 App. Div. 502, 119 3. Y. Supp. 612; Cleary v. Heyward 1910) 123 N. Y. Supp. 334; Weber v. lumbia Amusement Co. (1914) 160 Arp. Div. 835, 146 N. Y. Supp. 53 (dic O'Grady v. Howe & R. Co. 1915) 166 App. Div. 552, 152 N. Y. pp. 79 (dictum); Zimmerman Goodman Mortg. & Realty Co. (1921) V. (1893) 6 Misc. 84, 26 N. Y. Supp. 38, appeal denied in (1894) 7 Misc. 744, 27 N. Y. Supp. 1123; Vulcan Iron Works v. Pittsburg-Eastern Co. (1911) 144 App. Div. 827, 129 N. Y. Supp. 676; Smart Set Specialty Clothing Co. v. Franklin Knitting Mills (1920) 191 App. Div. 33, 180 N. Y. Supp. 821. See also Burr v. Beers (1861) 24 N. Y. 178, 80 Am. Dec. 327; Durnherr v. Rau (1892) 135 N. Y. 219, 32 N. E. 49; Lockwood v. Smith (1913) 81 Misc. 334, 143 N. Y. Supp. 480. However, the New York courts have consistently applied the rule denying third parties the right to sue on sealed instruments made for their benefit, in actions by undisclosed principals on contracts under seal entered into by their agents. Briggs v. Partridge (1876) 64 N. Y. 357, 21 Am. Rep. 617; Henricus v. Englert (1893) 137 N. Y. 488, 33 N. E. 550; Smith v. Pierce (1899) 45 App. Div. 628, 60 N. Y. Supp. 1011; Ivy Courts Realty Co. v. Barker (1911) 71 Misc. 460, 128 N. Y. Supp. 715; Buge v. Newman (1908) 61 Misc. 84, 113 N. Y. Supp. 198, affirmed in (1909) 132 App. Div. 928, 118 N. Y. Supp. 1097; Cleary v. Heyward (1910) 123 N. Y. Supp. 334. See also O'Brien v. Clement (1916) 160 N. Y. Supp. 975; Van Ingen v. Belmont (1923) 121 Misc. 109, 200 N. Y. Supp. 847. N. Y. Supp. 698 (dictum). See also Denike v. De Graaf (1895) 87 Hun, 1,33 N. Y. Supp. 1015, affirmed withCat opinion in (1897) 152 N. Y. 650, N. E. 1106; Re Bishop (1915) 89 se. 355, 151 N. Y. Supp. 768; O'Brien Cement (1916) 160 N. Y. Supp. 975. On the other hand, there are decifins of courts of this state (one of them, as will be observed, a decision the court of last resort) the correct Dess of which has never been ques tioned, that the same rule applies with respect to the right of a third party to e upon a contract under seal as apTiles to his right to sue upon a simple Contract to which he was not a party. Coster v. Albany (1871) 43 N. Y. 399; The rule is not affected by the fact that the word "agent" is added to the signature to the instrument; the agent remains the real party in interest. Buge v. Newman (1908) 61 Misc. 84, 113 N. Y. Supp. 198, affirmed in (1909) 132 App. Div. 928, 118 N. Y. Supp. 1097; Cleary v. Heyward (1910) 123 N. Y. Supp. 334. In Briggs v. Partridge (1876) 64 N. Y. 357, 21 Am. Rep. 617, after pointing out that the real question was whether a vendor in a sealed executory agreement inter partes could enforce it as a simple contract of a person not mentioned or a party to the instrument, on proof that the vendee, who had signed and sealed it as his contract, had oral authority from such third person to enter into the contract for the purchase, the court said: "A seal has lost most of its former significance, but the distinction between specialties and simple contracts is not obliterated. A seal is still evidence, though not conclusive, of a consideration. The rule of limitation in respect to the two classes of obligations is not the same. We find no authority for the proposition that a contract under seal may be turned into the simple contract of a person not in any way appearing on its face to be a party to or interested in it, on proof de hors the instrument, that the nominal party was acting as agent of another, and especially in the absence of any proof that the alleged principal has received any benefit from it, or has in any way ratified it, and we do not feel at liberty to extend the doctrine applied to simple contracts executed by an agent for unnamed principal so as to embrace this case. The general rule is declared by Shaw, Ch. J., in Huntington v. Knox (1851) 7 Cush. (Mass.) 374: 'Where a contract is made by deed under seal on technical grounds, no one but a party to the deed is liable to be sued upon it, and therefore, if made by an attorney or agent, it must be made in the name of the principal in order that he may be a party, because otherwise he is not bound by it."" The decision of the above case was based chiefly upon Townsend v. Hubbard (1842) 4 Hill, 351, which holds that if it distinctly appears from a deed or instrument that the seal affixed thereto is the seal of the attorney, and not of the principal, the latter cannot be made liable in an action of debt or covenant as upon a specialty. A somewhat similar conclusion was reached in Ronginsky v. Freudenthal (1909) 134 App. Div. 422, 119 N. Y. Supp. 409, where it was held that neither the mortgagee nor mortgagor could sue on an instrument under seal executed contemporaneously with a conveyance of the mortgaged premises to the mortgagee's duly constituted agent, which did not on its face show that it was made for the mortgagee, or that the party to the contract was executing it as agent. Referring to the statement of Briggs v. Partridge that there is no authority for the position that a contract under seal may be turned into a simple con- do not feel at liberty to change a rule In Van Ingen v. Belmont (1923) 121 Misc. 109, 200 N. Y. Supp. 847, it is said: "The rule that an undisclosed principal may not sue or be sued upon a sealed instrument executed by his agent has long been an exception to the general rule that where a seal (as in our case) is not required, its presence does not confine enforcement to the nominal parties." The rule was laid down without qualification in Henricus v. Englert (1893) 137 N. Y. 488, 33 N. E. 550, that when an instrument is under seal, no person can sue to enforce the covenant therein contained except those who are named as parties to the instrument, and who signed and sealed the same; the actual decision there was that the persons who have entered into a contract as agents for their wives are the real parties in interest, and as such entitled to sue upon the contract, notwithstanding the addition of the word "agent" to their name in the execution of the instrument. Upon the authority of the Henricus Case it was held in Barzilay v. Loewenthal (1909) 134 App. Div. 502, 119 N. Y. Supp. 612, that members of an unincorporated association which entered into an agreement under seal with another unincorporated association, by the terms of which the latter was to furnish the members of the former such competent help as might be required, could not, because of the fact that the agreement was under seal, maintain any action thereon in their own name, notwithstanding a violation of the agreement to furnish help. In Weber v. Columbia Amusement Co. (1914) 160 App. Div. 835, 146 N. Y. Supp. 53, which was an action on the lease under seal, the court declared broadly that an action on it could be maintained only in the right of the parties who are by the express terms parties thereto. However, in that case the court deemed it unnecessary to decide even whether the instrument was to be sealed or not. O'Grady v. Howe & R. Co. (1915) 166 App. Div. 552, 152 N. Y. Supp. 79, is to the same effect; there it was said that the rule that no persons, save parties named in a contract under seal, and who actually signed it, could sue or be sued thereon, was unimpeachable, and was reasserted in Case v. Case (1911) 203 N. Y. 263, 96 N. E. 440, Ann. Cas. 1913B, 311, but in that case, too, the court took the position that the contract which the plaintiff was seeking to enforce was not under seal (contract for the purchase of real property made by an agent). Stating the law to be well settled (under the decisions of Henricus v. Englert (1893) 137 N. Y. 488, 33 N. E. 550; and Briggs v. Partridge (1876) 64 N. Y. 357, 21 Am. Rep. 617) in New York that only parties named in and who executed an instrument under seal can enforce such covenants, the court in Williams v. Magee (1902) 76 App. Div. 512, 78 N. Y. Supp. 550, affirmed in (1903) 177 N. Y. 534, 69 N. E. 1133, held that an instrument under seal executed on one part by three persons, who held mortgage bonds of a defunct railroad under which they were to foreclose the mortgage, purchase in the property, and convey it to the party of the second part or a railroad thereafter to be organized, in consideration of which the party of the second part was to deliver over to the party of the first part mortgage bonds of the projected railroad to the amount of 50 per cent of the principal of the old bonds, could not be enforced by the surviving member of a firm of which one of the parties of the first part was a member, on the theory that such party was acting as agent of the 47 A.L.R.-2. firm, notwithstanding that the preamble to the agreement recites that the parties of the first part were "as a committee representing holders of other bonds of said company," and that, default having been made in the payment of interest on the bonds, the committee for themselves and other bondholders were desirous of changing their investment, where, in the agreement itself and the covenants, the parties individually are designated as parties of the first part, and as individuals they executed it. The court said that the solemnity which for centuries had been attached to instruments under seal still remains anchored as something tangible and of substance, although in this practical age one is apt to think it rests upon a fiction. Speaking of the right to enforce the contract, the court says: "They must have been parties to the instrument, or, at least, that document must show specifically that they were the principals and are obligated by it; that is, the agreement establishes who are parties to it and are liable for the fulfilment of its covenants, and may reap its benefits." A leading case on the subject in this state is Case v. Case, supra, wherein action was brought by the plaintiff against his brother upon a contract under seal made by the latter with his mother for her support and maintenance, which recites that it was entered into by the defendant upon the consideration that the mother had united with the plaintiff in a deed of the farm to the defendant, that by the contract based upon the consideration, the defendant bound himself to support his mother in health and sickness during her life, which agreement, it was alleged, the defendant had failed to keep; the controlling question was whether an action could be maintained upon the contract under seal by one not a party to the instrument, and it was held that the action was not maintainable. The court states: "Nothing is more definitely settled in our law than that an instrument under seal cannot be enforced by or against one who is not a party to it. This is so elementary as to be axiomatic and needs no support in the citation of authorities. A different rule exists as to simple contracts upon which, for reasons adverted to in Briggs v. Partridge (1876) 64 N. Y. 362, 21 Am. Rep. 617, actions may be brought by or against the real principal although he is not named in the instrument. There are exceptions to the rigid rule that only the parties to a contract under seal can be parties to a litigation for its enforcement, such, for instance, as a suit to enforce an antenuptial agreement for a marriage settlement by the person for whose benefit it was made. Phalen v. United States Trust Co. (1906) 186 N. Y. 187, 7 L.R.A. (N.S.) 734, 78 N. E. 943, 9 Ann. Cas. 595. But even in such cases it is the rule, both in law and equity, that mere volunteers or strangers to the consideration have no standing in court. Borland v. Welch (1900) 162 N. Y. 104, 56 N. E. 556. The case at bar is not within this or any other exception to the general rule, for the plaintiff is a mere volunteer, who is not a party to the contract, and who is an utter stranger to the consideration. . . . In the case at bar the covenants of the agreement were made for the benefit of the mother, and she alone had a legal interest in their enforcement. Without going further in the bypaths of distinctions and refinements, it is enough to repeat that this is an action upon an agreement under seal to which the plaintiff is not a party. It can only be enforced by the mother, who is a party thereto, and for whose benefit it was made." In Zimmerman v. Goodman Mortg. & Realty Co. (1921) 191 N. Y. Supp. 698, in an action for the reformation of a lease, the court declared under the doctrine of Case v. Case, supra: "It is unquestionably the rule that an instrument under seal cannot be enforced by or against anyone who is not a party to it." In Lockwood v. Smith (1913) 81 Misc. 334, 143 N. Y. Supp. 480, action was brought to recover funeral expenses under a contract between the decedent and the defendant, by which the latter, in consideration of a conveyance of real estate to him, undertook to support the former during his life and at his decease to pay his funeral expenses; the defendant contended that, as the contract was under seal, the plaintiff, not being a party thereto, could not sue upon it, relying upon Case v. Case, supra, as absolute authority for his position. The court said: "That case recognizes the fact that there are exceptions to the rule which prevents a person not a party to an instrument under seal from bringing suit thereon, and my examination of the cases leads me to the conclusion that the presence or absence of a seal has had very little bearing upon decisions of the courts. The case in question states: 'The case at bar is not within this or any other exception to the general rule, for the plaintiff is a mere volunteer, who is not a party to the contract, and who is an utter stranger to the consideration.' Under these circumstances the plaintiff would not be entitled to recover whether the agreement was under seal or not. Later in the opinion it is said that in Durnherr v. Rau (1892) 135 N. Y. 219, 32 N. E. 49, Andrews, J., seems to put the whole doctrine in one pregnant paragraph, and quotes as follows: 'It is not sufficient that the performance of the covenant may benefit a third person. . It must have been entered into for his benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties, and, in addition, the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance.' If these elements are present, the agreement has been enforced at the instance of the third party, regardless of whether the instrument was under seal or not. See Coster v. Albany (1871) 43 N. Y. 399, and a long line of cases following it, down to and including Pond v. New Rochelle Water Co. (1906) 183 N. Y. 330, 1 L.R.A. (N.S.) 958, 76 N. E. 211, 5 Ann. Cas. 504; also Baird v. Erie R. Co. (1911) 148 App. Div. 461, 132 N. Y. Supp. 971, affirmed in (1914) 210 N. Y. 225, 104 N. E. 614. The real distinction between the cases where a third party has been permitted to enforce an agreement and those in which the third party has been denied relief is that, in the former class of cases, the promisee has been under some legal obligation to the third party, which that party would have a right to enforce against the promisee." Recovery was denied on the ground that there was no privity between the plaintiff and the promisee. It was said in Staff v. Bemis Realty Co. (1920) 111 Misc. 635, 183 N. Y. Supp. 887, that the opinion in Case v. Case, supra, "indicates plainly, both by its language and by its reference to Briggs v. Partridge (1876) 64 N. Y. 357, 21 Am. Rep. 617, that what was there decided was that an instrument under seal cannot be enforced by a stranger not mentioned in it, on the theory that he is a party to it, as, for example, an undisclosed principal." But the court then goes on to say: “Reference is made in the opinion, however, to the theory that the plaintiff might have enforced the contract as one 'made for his benefit,' and the distinction mentioned by Andrews, J., in Durnherr v. Rau, supra, is emphasized to the effect that 'it is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or at least such benefit must be the direct result of performance, and so within the contemplation of the parties."" And notwithstanding the holding in Spencer v. Field (1833) 10 Wend. 87 (which was followed in Tylee v. M'Lean (1833) 10 Wend. 374), that, while a simple contract may be enforced by a third party for whose benefit it was made, no one but a party to a contract under seal and inter partes can maintain an action for a breach of it, the conclusion was reached in Coster v. Albany (1871) 43 N. Y. 399, where the court held that, although a distinction had sometimes been made in favor of a simple contract, the same rule should prevail with respect to contracts under seal as prevails with respect to simple contracts. In Vulcan Iron Works v. PittsburgEastern Co. (1911) 144 App. Div. 827, 129 N. Y. Supp. 676, the court held that a contract under seal whereby the defendant assumed and agreed to pay certain notes of a third party might be enforced by the holder of the notes, the court stating that the doctrine of Lawrence v. Fox (1859) 20 N. Y. 268, applied as well to contracts under seal as to simple contracts. But, immediately following this statement, the court points out that "there was clearly in this contract a legal obligation or duty on the part of the promisee, Egan, to the third party, this plaintiff, inasmuch as he was indebted to the plaintiff on his promissory notes." Under the authority of the Coster Case, it was held in Riordan v. First Presby. Church (1893) 6 Misc. 84, 26 N. Y. Supp. 38, appeal denied in (1894) 7 Misc. 744, 27 N. Y. Supp. 1123, that the fact that a promise is evidenced by a specialty instead of a simple contract is ineffectual to render the rule that a promise for the benefit of another will sustain an action by that other, unavailing to one not a party or privy to the instrument. And it was intimated in Smart Set Specialty Clothing Co. v. Franklin Knitting Mills (1920) 191 App. Div. 33, 180 N. Y. Supp. 821, that one not a party to an instrument under seal might nevertheless maintain an action on it, provided the instrument was made for his benefit; but it was there held that the action was not maintainable for the reason that the promisor was not under any liability or obligation to the plaintiff. The New York court of appeals in Burr v. Beers (1861) 24 N. Y. 178, 80 Am. Dec. 327, under the broad principle that, if one person make a promise to another for the benefit of a third person, the latter may maintain an action on the promise, held that a mortgagee may maintain a personal action against a grantee of the premises on a covenant in the deed by which the grantee assumed payment of the mortgage, declaring that this rule had been adopted without hesitation in Lawrence v. Fox (1859) 20 N. Y. 268; however, the court gave no consideration to the fact that the promise was contained in an instrument under seal, apparently not regarding this as a material fact. |