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ry P. Nawn died in March, 1922. This action was begun March 29, 1923.

The exceptions must be overruled.

Accountswhen action lies.

The action is at law on an account stated. Such an action lies only where there have been transactions previous to the statement of the account which create a relation of debtor and creditor. Chase v. Chase, 191 Mass. 556, 78 N. E. 115; Tucker v. Columbian Nat. Bank, 232 Mass. 224, 229, 122 N. E. 285. It is inapplicable to enforce a promise to pay the debt of another. French v. French, 2 Mann. & G. 644, 133 Eng. Reprint, 903. The promise here is to pay the debt of John J. Nawn.

-action to compel payment.

Parties-who can enforce promise to pay debt.

The plaintiff contends, however, that it has acquired a right to sue by virtue of the declaration of trust signed by Henry Nawn in 1900. That declaration is under seal. The only promise which it contains is a promise to John J. Nawn. He is the who only person can sue upon it. A third person cannot maintain an action on a sealed instrument to which he is not a party. Millard v. Baldwin, 3 Gray, 484; Boyden v. Hill, 198 Mass. 477, 487, 85 N. E. 413; Forbes v. Thorpe, 209 Mass. 570, 581, 95 N. E. 955.

-right to enforce promise under seal.

Moreover, if there had been in that declaration any promise to pay the plaintiff's assignor, it would have been terminated in 1920 by operation of the statute of limitations now embodied in Gen. Laws, chap. 260, § 2. Only a new promise in writing signed by the party to be charged could take away the bar of that statute. Gen. Laws, chap. 260, § 13. The jury has found that no such new promise existed.

If the reconveyance made in 1903 was a breach of trust, any right at law or in equity to proceed against

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There was evidence to justify the finding by the jury. The plaintiff contends that the finding by the auditor must control in the absence of affirmative evidence to impeach it. Greenburg v. Stoehrer & P. Dodgem Corp. 250 Mass. 410, 433, 145 N. E. 824. There is such affirmative evidence in reasonable inference to be drawn from the statements of Henry Nawn in his life- of promise to time, put in evidence by the defendants, denying any promise, taken with the conduct of the parties as disclosed in the evidence hereinbefore stated. Wyman v. Whicher, 179 Mass. 276, 60 N. E. 612. The questions, what was to be believed, and what inferences were proper, were for the jury.

pay debt.

The fourth request for instructions was waived. No claim of fraud on the part of Henry Nawn is made. What has been said disposes of the exceptions taken to the refusal to instruct as requested.

The judge could not have directed a verdict for the plaintiff rightly. Upon the finding of fact made by the jury, after instructions to which no exception was saved, he was right in directing a verdict for the defendants.

Exceptions overruled.


Right of third person to maintain action at law on sealed instrument. [Parties, § 10.]

I. Introductory, 5.

II. View that third party cannot maintain action in own name:

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1. Introductory.

Probably no question in the law of contracts has involved the courts in are difficulties than the frequently scussed question of the right of one a party to a contract intended for s benefit to maintain an action therein his own name. The early comon law denied absolutely that any ch right existed. This rule had its rigin in the early conception of assampsit, limiting the action to the per

from whom the consideration ved. 2 Elliott, Contr. 1411. The cient rules were, however, relaxed some extent, yet down to the present conflicting rules are advanced in different jurisdictions, and varying theories are indulged in by the courts sustaining or denying the right to e. These varying attempts at theoretical analysis, and the contrary resits reached, as well as the fact that this question has been also a source of trouble and confusion in the Roman

and the modern civil law, show the inherent difficulty of determining the legal rights under such contracts.

tract is of such a nature as to constitute the promisor a trustee for the benefit of such person; but in a majority of jurisdictions in this country the contrary rule prevails; stated in general terms, leaving out limitations recognized in various jurisdictions, the rule is (in some states embodied in statutes) that a third person may enforce a promise made for his benefit even though he is a stranger both to the contract and the consideration. 6 R. C. L. 882, § 271.

The object of this annotation is to discuss the application of this general rule to actions by third persons on contracts under seal. For the pur

poses of this discussion, it necessarily

will be assumed that the third party might have sued but for the fact the agreement was under seal, and only cases in which the seal was a factor in the decision reached are considered. As indicated in the title hereto, cases involving actions at law only will be included. The annotation is confined strictly to a discussion of the right of one who is not a party to the instru

1 Williston, Contr. § 347. At present ment in fact or by construction of law,

the English rule, which is followed in several American jurisdictions, seems be (aside from the possible excepn where there is close relation between the promisee and the person from whom the consideration moves

to sue upon it, excluding, therefore, questions as to the right of one who did not sign a sealed instrument, who by construction of law is deemed a party thereto, to sue on it.

ee 6 R. C. L. 892]) that, notwith- trated, perhaps, more clearly by the

The class of cases excluded is illus

anding a contract may have been in

5.3, he cannot enforce the promise if courts, while recognizing the rule that ended for the benefit of a third per- Boyce (Del.) 546, 90 Atl. 86, that some

statement in Jones v. Buck (1914) 4

e is a stranger to both the contract

and the consideration, unless the con

the inter partes character of the con

tract under seal determines who are

the parties with legal interest, and excludes from the enforcement thereof all others with mere beneficial interests, nevertheless look for a party with legal interest in some other part of the contract than in the premises, and finding that the contract has conferred upon a third person, who may happen to be the person beneficially interested, the legal right to enforce that interest by an action at law, and that this legal right is conferred by a clear expression, and not by implication, permit such other party to enforce the contract in his own name, upon the ground, however, that there is really another party to the contract who has an enforceable legal interest.

One phase of the general question of the right of a third party to enforce a contract made for his benefit is considered in the annotation in 2 A.L.R. 1193, supplemented in 33 A.L.R. 739 [Parties, § 10], entitled "Right of beneficiary to enforce contract between third persons to provide for him by will." Another phase is covered in the annotation in 21 A.L.R. 439, on “Liability of grantee assuming mortgage debt to mortgagee or one in privity with him."

Clearly one not a party to an instrument under seal, and not a beneficiary thereunder, can maintain no action on it. Leon v. Kerrison (1904) 47 Fla. 178, 36 So. 173; Gibson v. Johnson (1901) 23 Ky. L. Rep. 1322, 65 S. W. 116. This rule, however, is founded on the principle of contract law, that contracts do not as a rule confer rights on anyone but the parties thereto (see 6 R. C. L. 881), and the rule would be the same with respect to simple contracts.

II. View that third party cannot maintain action in own name.

a. In general.

At the present time, a majority of adjudicated cases passing upon the question under discussion hold that the rule which permits third persons to sue on contracts made for their benefit does not extend to give a third person the right to sue on a contract under seal; in other words, the fact that the instrument is under seal pre

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Massachusetts.-Montague v. Smith (1816) 13 Mass. 396; Watson v. Cambridge (1818) 15 Mass. 286 (dictum); Johnson v. Foster (1846) 12 Met. 167; Huntington v. Knox (1851) 7 Cush. 371 (dictum); Millard v. Baldwin (1855) 3 Gray, 484; Northampton v. Elwell (1855) 4 Gray, 81; Robb v. Mudge (1860) 14 Gray, 534; Flynn v. North American L. Ins. Co. (1874) 115 Mass. 449; Flynn v. Massachusetts Ben. Asso. (1890) 152 Mass. 288, 25 N. E. 716; Saunders V. Saunders (1891) 154 Mass. 337, 28 N. E. 270; Clark v. Bullard (1911) 208 Mass. 586, 94 N. E. 1042 (dictum); Boyden v. Hill (1908) 198 Mass. 477, 85 N. E. 413; Forbes v. Thorpe (1911) 209 Mass. 570, 95 N. E. 955; CAVANAUGH BROS. HORSE Co. v. GASTON (reported herewith) ante, 1.

Missouri.-Robbins v. Ayres (1847) 10 Mo. 538, 47 Am. Dec. 125 (overruled by Rogers v. Gosnell (1873) 51 Mo. 466, on later appeal in (1875) 58 Mo. 589).

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New York. See infra, II. d. Pennsylvania. Strohecker Grant (1827) 16 Serg. & R. 237; De Bolle v. Pennsylvania Ins. Co. (1839) 4 Whart. 68, 33 Am. Dec. 38; Mississippi C. R. Co. v. Southern R. Asso. (1869) 4 Brewst. 79. See also American Ins. Co. v. Insley (1847) 7 Pa. 223, 47 Am. Dec. 509; Mississippi C. R. Co. v. Southern i.. Asso. (1871) 8 Phila. 107.

Rhode Island.

Woonsocket Rubber Co. v. Banigan (1899) 21 R. I. 146, 42 Atl. 512.

Tennessee. McAlister v. Marberry (1844) 4 Humph. 426.

Vermont. Fairchild v. North-Eastern Mut. Life Asso. (1879) 51 Vt. 613; Morrill v. Catholic Order of Foresters (1907) 79 Vt. 479, 65 Atl. 526.

Virginia. Ross v. Milne (1841) 12 Leigh, 204, 37 Am. Dec. 646; Jones v. Thomas (1871) 21 Gratt. 96 (dictum). See also McIlvane v. Big Stony Lumber Co. (1906) 105 Va. 613, 54 S. E. 473.

West Virginia. Johnson v. McClung (1885) 26 W. Va. 659. Wyoming. See McCarteney v. Wyoming Nat. Bank (1877) 1 Wyo. 382. England. Gilby v. Copley (1683) 3 Lev. 138, 83 Eng. Reprint, 618; Southampton v. Brown (1827) 6 Barn. &C. 718, 108 Eng. Reprint, 615; Barford v. Stuckey (1820) 2 Brod. & B. 333, 129 Eng. Reprint, 995; Berkeley v. Hardy (1826) 5 Barn. & C. 355, 108 Eng. Reprint, 132, 2 Eng. Rul. Cas. 274; Chesterfield & M. Silkstone Colliery Co. v. Hawkins (1865) 3 Hurlst. &C. 677, 159 Eng. Reprint, 698.

And in other cases, in fact dealing with simple contracts, it has been declared that one not a party to a contract made for his benefit may nevertheless maintain an action on the con

Minnesota. Follansbee v. Johnson (1881) 28 Minn. 311, 9 N. W. 882. New Jersey. Car Spring Co.

Joslin v. New Jersey (1873) 36 N. J. L. 141. New York. Nicoll v. Burke (1879) 78 N. Y. 580; Navarre Hotel & Importation Co. v. American Appraisal Co. (1913) 156 App. Div. 795, 142 N. Y. Supp. 89. Cox v. Skeen

North Carolina.

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England. Sims v. Bond (1833) 5 Barn. & Ad. 389, 110 Eng. Reprint, 834. See also New England Marine Ins. Co. v. De Wolf (1829) 8 Pick. (Mass.) 56.

The right of the party for whose benefit a contract was entered into to sue thereon was denied without discussion of the fact that the instrument was under seal in Waycross Air-Line R. Co. v. Southern Pine Co. (1902) 115 Ga. 7, 41 S. E. 271 (covenant in sale of timber; right to ship timber over plaintiff railroad), and in Styles v. F. R. Long Co. (1902) 67 N. J. L. 418, 51 Atl. 710.

And in the following cases the right of a third party to maintain an action on a contract apparently under seal was denied: Prentice v. Brimhall (1877) 123 Mass. 291 (covenant in deed to assume and pay a mortgage); Coffin v. Adams (1881) 131 Mass. 133 (stipulation in deed poll to assume and pay mortgage); Ricard v. Sanderson (1869) 41 N. Y. 179; Borland v. Welch (1900) 162 N. Y. 104, 56 N. E. 556 (right of third party to enforce marriage settlement denied on ground that it was not made for benefit of piaintiff).

This rule, concerning which the earlier courts were practically unanimous,

is based largely upon technical grounds founded in the common-law distinctions in the form of action in which sealed instruments could be enforced and the form of action for breach of simple contracts, the former being enforceable only by an action of covenant or debt brought in the name of the covenantee. The reason for the rule can hardly be said to exist at the present time, as in practically all jurisdictions sealed instruments may be enforced by any action in which a simple contract may be enforced; and, as suggested by some of the cases set out infra, states which never adopted the common-law forms of pleading have consistently refused to make any different ruling with respect to the right of third parties to enforce instruments under seal than with respect to simple contracts. And, while some courts still adhere rigidly to this rule, there is a marked tendency, even where the rule has been adopted, to break away and permit sealed instruments to be enforced by third parties whenever the nature of the contract is such that it might have been enforced by such parties, had it not been under seal.

Thus, as said in Central Trust Co. v. Berwind-White Coal Co. (1899; C. C.) 95 Fed. 391, the generally admitted common-law right of one to sue in assumpsit in his own name upon a promise contained in an agreement to which he was not a party did not extend to a promise under seal which could only be enforced by an action of debt or covenant, because one not named in the instrument could not bring the action, for no covenant had been made with him; but in many states where common-law forms of action have disappeared, the stringency of this rule has been relaxed.

At common law only an action of covenant or debt could be brought upon a sealed instrument; and so the rule that, where one person covenanted with another to pay money or to perform some act for the benefit of a third, the action must be brought in the name of the covenantee, and could not be maintained in the name of the beneficiary, even though he was a party in interest, and even though it was ex

pressly stated in the instrument that it was for his benefit-had its origin in the nature of the action of covenant, inasmuch as only a party to a sealed instrument can bring an action of covenant or debt. Webster v. Fleming (1899) 178 Ill. 140, 52 N. E. 975.

But it has been held that, without a violation of the rule denying a third party the right to enforce an instrument under seal, though made for his benefit, a sealed instrument may not only be used as evidence in an action in assumpsit by the parties for whose benefit it was made, but may form the very foundation out of which the action of assumpsit arises, if there is no stipulation in the instrument for the payment to the party to be benefited; and so, where an instrument under seal merely contains a statement of the rights of parties interested, upon the happening of certain events, without any agreement or contract by one party to account to the other or do any act for the benefit of the ones who are not parties, the latter may enforce rights secured under the instrument in assumpsit in their own names. Hinkley v. Fowler (1839) 15 Me. 285.

And while, for the purpose of this annotation, it has been assumed that third persons might have sued upon the contract but for the fact it was under seal, attention is called to the fact that, in Massachusetts, the right of a third party to sue upon a contract is conferred within very narrow limits; this is also true with respect to the Federal courts; and New Hampshire, Vermont, Virginia, and England, as well as some other jurisdictions, deny the right of a third party to sue at law on even a simple contract. See 1 Williston, Contr. § 368. As will be observed, decisions from these states, which form a very considerable proportion of the decisions denying the right of third parties to sue on sealed instruments, have been included in the citation of cases given in support of the view that the rule permitting third parties to sue on contracts made for their benefit does not extend to contracts under seal, inasmuch as in these cases the courts have based their decisions upon the fact that the instru

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