ment was under seal, and not upon any supposed difficulty in the way of a third party's right to enforce a simple contract; moreover, even in these jurisdictions there are various recognized exceptions to the rule adopted, viz., that no one but a party to a simple contract may sue upon it. Also, early decisions in Massachusetts recognized the right of a third party to sue on a simple contract, but denied his right to sue on a sealed instrument. Nevertheless, decisions from these jurisdictions cannot be accorded the weight they otherwise would have on the question of the enforcement of sealed instruments by third parties, as distinguished from the enforcement of simple contracts by third parties. In Illinois and New Jersey the rule, once adopted in those states, has been abrogated in effect by statute (see in-, fra, II. c.); this leads to the suggestion that in other states which have so far committed themselves to the rule denying the right of a third party to enforce a contract under seal that change is not likely to come by judicial decision, a change might well be effected by statute. New York decisions reflect considerable confusion and are discussed infra, II. c C. b. Applications; illustrations of general rule. The doctrine that when A makes a promise to B for the benefit of C, he may sue in his own name for a breach of that promise, is confined exclusively to simple contracts; it does not extend to contracts under seal. Millard v. Baldwin (1855) 3 Gray (Mass.) 484. On technical grounds no one but a party to an instrument under seal may sue upon it. Huntington v. Knox (1851) 7 Cush. (Mass.) 371. (Earlier Massachusetts courts adopted the rule permitting a beneficiary to sue simple contract [see 1 Williston, Contr. § 367]; but this rule was apparently abandoned in favor of the rule denying the beneficiary the right to sue.) So, we find the Massachusetts court in Saunders v. Saunders (1891) 154 Mass. 337, 28 N. E. 270, saying as follows; "It is well settled in this state in re upon gard to simple contracts, that 'a per- gard to contracts under seal, the law And in How v. How (1817) 1 N. H. 49, it was held that a wife could not maintain an action in her own name on a stipulation in a deed under seal by her husband, by which the grantee therein covenanted to maintain the wife in case she survived the grantor, the covenant not being made with her, but with another for her use. (Note that in New Hampshire the rule denying a third party the right to maintain an action on a simple contract for his benefit prevails.) The rule as announced by the Maryland court in Seigman v. Hoffacker (1881) 57 Md. 321, is that, although in the matter of simple contract a promise to one for the benefit of another may be enforced by the person for whose benefit the promise is made, in actions upon contracts under seal, and inter partes, suit must be brought by the party to the instrument, although it is for the benefit of someone else mentioned therein as beneficiary. And, admitting that there were some cases to the contrary, the Rhode Island court in Woonsocket Rubber Co. v. Banigan (1899) 21 R. I. 146, 42 Atl. 512, said that the rule was well established with respect to contracts under seal, that none but parties to such contracts could sue upon them, and this though the contract be for the benefit of others. In case of what is technically called an instrument inter partes, it is a settled rule that, although a covenant be expressed in the instrument for the benefit of a third person named in it, an action can be brought in the name of one of the parties only, and not in the name of such third person. Smith v. Emery (1830) 12 N. J. L. 53; Loeb 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 it was f the nat inasmuc instrum Covenan (1899) But i a violat party th ment ur benefit, only be in assu benefit very for tion of stipulat paymen and so, seal me rights o happeni any ag party to act for are not rights in assu Hinkley And annotat third p the cont der seal that, in third pa conferr this is Federal Vermon well as the righ on even ton, Cor decision form a of the third pa ments, 1 tion of view th parties their be tracts u cases th sions u out mird tru his not tion hose the ou s the ted; der the the mout one any who orce ment mes. 285. this that pon un fact of a et is its; nire, , as eny law llis ved, ich tion tof tru hird for con tru gard to simple contrac son who is not a party tract, and from whom moves, cannot sue on t consequently that a p one person to another of a third person who the consideration will action by the latter.' gard to contracts und has always been that were parties to them them." And in How v. How 49, it was held that a maintain an action in on a stipulation in a by her husband, by wh therein covenanted t wife in case she survi the covenant not being but with another for that in New Hampshir ing a third party the r an action on a simple benefit prevails.) The rule as announ land court in Seigm (1881) 57 Md. 321, is the matter of simple ise to one for the be may be enforced by whose benefit the pro actions upon contracts inter partes, suit mus the party to the instr it is for the benefit mentioned therein as And, admitting that cases to the contrary, court in Woonsocket (1899) 21 F hat the rule respect to none but uld sue the con hers. what is t ent inter p at, althou in the ins a third per can be bro the parties of such thir 1830) 121 v. Barris (1888) 50 N. J. L. 382, 13 Atl. 602. In Crowell v. Currier (1876) 27 N. J. Eq. 152, the court said that the rule that an action at law for breach of a contract under seal can only be brought in the name of a party to the instrument, that a third person not a party to it cannot sue thereon though it was made expressly for his advantage, is so ancient, and has been so generally adhered to, that it must be regarded as axiomatic and beyond the power of the courts to alter or destroy. To the same effect is Cocks v. Varney (1889) 45 N. J. Eq. 72, 17 Atl. 108. But by statute the rule permitting third parties to sue on simple contracts has been extended to contracts under seal. See infra, II. c. Under the rule in Illinois as it existed prior to the enactment of the statute abolishing distinctions between sealed instruments and simple contracts with respect to the bringing of actions thereon, one who was not the party to an inter partes deed could not maintain an action thereon, although it purported to be made for his sole benefit and contained an express covenant with him to perform for his benefit. Hager v. Phillips (1852) 14 Ill. 260. To the same effect is Gautzert v. Hoge (1874) 73 Ill. 30. An apprentice not a party to the indenture of apprenticeship cannot maintain an action of covenant in his own name on the instrument, to enforce obligations in it for his benefit; for it is a technical and inflexible rule that, if a deed on its face expressly describes and denotes the parties to it, a third person cannot sue thereon, although the obligation purports to be made for his sole advantage, and contains an express covenant to perform an act for his benefit. Haskett v. Flint (1839) 5 Blackf. (Ind.) 69, 33 Am. Dec. 452. So, a bank cannot maintain an action of covenant on an instrument under seal "by and between" two individuals, given to indemnify one of them, who had negotiated a loan from the bank for the other, and the bank, from all manner of loss that he or the bank might sustain by reason of the loan, as there is nothing in the whole instrument to show that the bank was a covenantee with a legal interest, or possessed anything more than a mere beneficial interest. Jones v. Buck (1914) 4 Boyce (Del.) 546, 90 Atl. 86. It is a settled law in Maine that where one covenants with another by deed under his own hand and seal to pay him money for his own use, or for the use of another, the obligee alone can sue on the covenant, as the action must be covenant or debt, and not assumpsit, and the beneficiary can have. no action at law, but must seek his remedy in equity; but where the sealed instrument contains no covenant to pay or perform to the obligee or beneficiary, assumpsit will lie in favor of either as if the promise were shown by parol to be express instead of im.plied from a statement of the respective rights of the parties to the deed. Hinkley v. Fowler (1839) 15 Me. 289; Baldwin v. Emery (1897) 89 Me. 496, 36 Atl. 994. But where a corporation enters into an agreement under seal to purchase the property of another corporation, and as a part of that agreement covenants to pay outstanding debts and liabilities of the vendor that were not secured by mortgages on its property, creditors of the vendor at the time this agreement was entered into cannot maintain assumpsit against the vendee. for the recovery of their debts, inasmuch as the covenant is an express obligation, the agreement falling within the settled rule that a covenant to pay or perform to one for his own use or for the use of another, may be enforced at law only by the covenantee, and not by the beneficiary. Harvey v. Maine Condensed Milk Co. (1898) 92 Me. 115, 42 Atl. 342. Under an indenture whereby parties to the instrument leased certain premises to the defendant, who covenanted to pay the rent to one not a party to the instrument, and to repair the premises, the person to whom the rent is to be paid cannot maintain an action of covenant for nonperformance of the agreement, he being a stranger to the indenture. Southamp ton v. Brown (1827) 6 Barn. & C. 718, 108 Eng. Reprint, 615. of So, where a deed is entered into between two persons, whereby one party undertakes to pay an annuity for a term of years to the other party, and to his child or children in event of his death during the term without making an appointment, a child the obligee, or its representatives, cannot, upon the obligee's death, maintain an action of debt in its own name on the instrument for nonpayment of the annuity, as the right to sue on the instrument is confined to the parties to it. Barford v. Stuckey (1820) 2 Brod. & B. 333, 129 Eng. Reprint, 995. So, although one authorizes another in writing (but not under seal) to execute a lease for him, he is not entitled to maintain an action in his own name on the lease which is under seal, notwithstanding that it is made by the party thereto on behalf of the principal. Berkeley v. Hardy (1826) 5 Barn. & C. 355, 108 Eng. Reprint, 132, 2 Eng. Rul. Cas. 274. Even in a deed poll a party suing on the deed must be named in it in order to maintain his suit. Green v. Horne (1694) 1 Salk. 197, 91 Eng. Reprint, 177. A covenant to pay the income from a trust fund to the widow of the other party to the instrument, should he die leaving a widow, cannot be enforced by the beneficiary. Saunders v. Saunders (1891) 154 Mass. 337, 28 N. E. 270. Holding that a town could not maintain an action on a bond made to the commonwealth "for the use of" the town, the court in Northampton v. Elwell (1855) 4 Gray (Mass.) 81, said. that it was settled law in Massachusetts that the right of action on a sealed instrument belongs to the party having the legal interest. The authorities are uniform in holding that no promise to pay the debts of another is available to a third party unless the agreement is in the form of a simple contract. Robb v. Mudge (1860) 14 Gray (Mass.) 534. And so a bond given the treasurer of a town to indemnify the town against the cost in certain suits pending against it, if under seal, cannot be enforced by the town in its own name, but must be enforced in the name of the obligee. Farmington v. Hobert (1883) 74 Me. 416. Construing a Code provision that "an immediate estate or interest in, or the benefit of, a condition respecting any estate, may be taken by a person under an instrument, although he be not a party thereto; and if a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain, in his own name, any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise," to provide for two classes of cases: First, where the covenant or promise is made by one or more for the sole benefit of a stranger,-one who did not sign the contract, and, second, where the covenant or promise between several persons is made for the sole benefit of one of them who signed it, where in either case he for whose sole benefit the covenant or promise was made, whether he was a party thereto or not, may maintain an action in his own name, the West Virginia court in Johnson v. McClung (1885) 26 W. Va. 659, held that the statute should read as if written: "If a covenant or promise be made for the sole benefit of a person with whom it is not made, or (if a covenant or promise is made for the sole benefit of a person) with whom it is made jointly with others, such person may maintain in his own name any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise;" that under this construction a person named in, but not a party to, an instrument under seal binding one of the parties thereto to assume and pay an indebtedness of the other party thereto to the plaintiff, could not maintain an action on the instrument in his own name, inasmuch as the parties to the covenant sued on did not, and did not intend to, make the promise for the sole benefit of the plaintiff. |