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of property to him by the mother of the plaintiff, agreed with her to pay the plaintiff £500 within two months after the mother's death; and it was held that the plaintiff could not recover upon that contract, as the consideration moved from another. In Cummings v. Klapp,1 the plaintiff had an execution against one C. for $72.21, which he put into the hands of an officer for collection. The defendant, a friend of C., promised the officer to pay the debt in three months, in consideration of the officer's forbearance for that time to collect of C. Held, that the plaintiff, not being privy to the promise, nor consenting to the forbearance, could not maintain an action upon it. So if A. has a claim against B., and B., having a similar claim against C., obtains a promise from C., for a consideration paid him by B. to pay A.'s claim, A. cannot maintain an action against C. on that promise, being a stranger to the consideration and to the promise, and not having accepted C. as a debtor in lieu of B.2 In McCoubray v. Thomson, one G., owning a farm of the value of £196, wished to divide it equally between M. and T., and all three agreed that he might convey it to T., and T. promised to pay £98 to M. Held that M. could not maintain an action for the amount, although he was privy to the promise, simply because no consideration moved from him.1

So in Linneman v. Moross," a father devised property to his son, who promised him, in consideration thereof, to pay the plaintiff, a daughter, $10 a month for life. Held, that she could not maintain an action at law upon such promise, and that, if it created a trust, it could not be enforced on the law side of the court.

In National Bank v. Grand Lodge, the Masonic Hall Association issued its bonds to the amount of $200,000; some of which were held by the plaintiff. Subsequently, the defendant corporation voted to assume the payment of the bonds, provided the Masonic Hall Association would issue its stock to said Grand Lodge to the amount assumed as fast as the bonds were paid. Held, that the plaintiff could not recover on such promise, for want of privity, and Mr. Justice Strong thus states the rule on this subject:

15 Watts & S. 511 (1843).

Ramsdale v. Horton, 3 Pa. St. 330 (1846); and see Torrens v. Campbell, 74 Pa. St. 470 (1893).

32 Ir. Rep. C. L. 226 (1868).

See also Faulkner v. Faulkner, 23 Ont. Rep. 252 (1893).

5 98 Mich. 178 (1893).

698 U. S. R. 123 (1878).

"We do not propose to enter at large upon the consideration of the inquiry how far privity of contract between a plaintiff and defendant is necessary to the maintenance of an action of assumpsit. The subject has been much debated, and the decisions are not all reconcilable. No doubt the general rule is that such a privity must exist. But there are confessedly many exceptions to

One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor's hands or under his control which in equity belong to a third person. In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets, than on the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or deliver some valuable thing to a third. But where a debt already exists from one person to another, a promise by a third person to pay such debt, being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity; and if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot sue. His case is not an exception from the general rule that privity of contract is required. There are some other exceptions recognized, but they are unimportant now. The plaintiff's case is within none of them. Nor is he sole beneficiary of the contract between the association and the Grand Lodge. The contract was made, as we have said, for the benefit of the association, and if enforceable at all, is enforceable by it."

So where the defendant had agreed to deliver certain goods to A., and A. gave him a written order to deliver the goods to B., and the defendant accepted the order and returned it to A., who gave it to B. as collateral security on a debt, it was held B. could not maintain an action against the defendant on the order and acceptance, for he furnished no consideration for it, and the contract was with A. and not with B.1

It is for the same reason, among others, that the payee and holder of a check on a bank cannot maintain an action on a promise made by the bank to the drawer of the check, to pay all

1 Rogers v. Union Stone Co., 130 Mass. 581; Morse v. Adams, Id. 585 (1881).

checks which he might draw on the bank, in consideration that he would deposit his funds in said bank, which had been done.1

So where in a policy of life insurance the company promises to pay the amount insured to the assured, his executors, administrators, or assigns, "for the benefit of his widow, if any," the widow cannot, at common law, maintain an action thereon in her own name, especially if such policy be under seal.3

So a promise by a remaining partner to his retiring partner, upon a consideration between them, that he will individually pay all the firm debts, cannot in some courts be enforced against him individually by a firm creditor; much less can such promise be enforced against one who was only a surety for the performance of such partner's promise, such surety receiving none of the assets.

In Vermont too it is well settled that the general rule is that only the person to whom the promise is made, and from whom the consideration moves, can maintain an action at law upon it. So in Michigan, Minnesota, and Indiana.9

Thus far there is approximately an accord in the different States on this subject. But there remains another class of cases where much difference of opinion exists. In the first place, it is quite generally agreed that if a debtor, without the knowledge of his creditor, conveys property to a third person, or, for some other consideration between them, procures a promise from such person to pay or guarantee the debt, the creditor cannot afterwards, upon learning of such promise, recover the debt from such third person, not having discharged the original debtor. 10 And logically that

1 Carr v. National Security Bank, 107 Mass. 45 (1871); Bank of the Republic v. Millard, 10 Wall. 152 (1869); Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82 (1871). 2 Bailey v. N. E. Insurance Co., 114 Mass. 177 (1873); Chamberlain v. The N. H. Fire Ins. Co., 55 N. H. 249 (1875); Stowe v. Phinney, 78 Me. 244 (1886).

* Flynn v. North Am. Life Ins. Co., 115 Mass. 449 (1874).

* Merrill v. Green, 55 N. Y. 270 (1873); Morehead v. Wriston, 73 N. C. 398.

5 Campbell v. Lacock, 40 Pa. St. 448 (1861); and see Morrison v. Beckey, 6 Watts, 349 (1837).

• Crampton v. Ballard, 10 Vt. 251; Pangborn v. Saxton, 11 Vt. 79; Hall v. Huntoon, 17 Vt. 244; Fugure v. Mutual Society, 46 Vt. 369; Fairchild v. N. E. Mut. Life Association, 51 Vt. 623.

7 Wheeler v. Stewart, 94 Mich. 445; Hidden v. Chappel, 48 Mich. 527.

8 Jefferson v. Asch, 53 Minn. 446.

"Salmon & Brown, 6 Blackf. 347 ; Farlow . Kemp, 7 Id. 544; Britzell v. Fryberger, 2 Ind. 176; Conklin 2. Smith, 7 Ind. 107.

10 Owings v. Owings, 1 H. & G. 484 (1827); Butterfield v. Hartshorn, 7 N. H. 345, (1834); Blymire v. Boistle, 6 Watts, 182 (1837); Warren v. Batchelder, 15 N. H. 129 (1844); Finney v. Finney, 16 Pa. St. 380 (1851); Manny v. Frazier, 27 Mo. 419 (1858);

rule would apply, although the debt to the plaintiff be secured by mortgage of the debtor's real estate, and, in his subsequent conveyance of such estate to the defendant the latter assumes and promises to pay the mortgage debt to the plaintiff as a part of the consideration of the conveyance. Mellen v. Whipple,1 is an important case in support of this position;2 especially so in case of a promise by a second mortgagee to the mortgagor, which the first mortgagee seeks to enforce in an action at law in his own name.3

In such cases, as well as in cases of unsecured debts, the grantor of the equity has undoubtedly a right of action against the grantee, if he fail to pay the mortgage debt within a reasonable time after maturity; in which action the grantor can recover damages to the full amount of the mortgage debt, if overdue, even if he has not yet paid it. If the mortgagee himself also has a right of action against the grantee of the estate, the latter may be liable to two actions by different parties, acting independently of each other; and after having paid the debt in full to his grantor, who has retained the money, the grantee is still in danger of being called upon by the mortgagee to pay again to him.

Many cases, however, have enforced such contracts against the grantee in a suit by the mortgagee; but some of them were brought distinctly in equity; some were on the equity side of a court which combines both law and equity; some rest upon the assumed ground that the estate conveyed to the defendant and the retention of part of the purchase price by him makes him the holder of a trust fund to which the creditor can resort in law, even

McLaren v. Hutchinson, 18 Cal. 80 (1861); Clapp v. Lawton, 31 Conn. 95 (1862); Robertson v. Reed, 47 Pa. St. 115 (1864); Pipp v. Reynolds, 20 Mich. 88 (1870); Turner v. McCarty, 22 Mich. 265 (1871); Halsted v. Francis, 31 Mich. 112 (1875); Wheat v. Rice, 97 N. Y. 296 (1884); Edwards v. Clement, 81 Mich. 513 (1890); Mor. rill v. Lane, 136 Mass. 93; Borden v. Boardman, 157 Mass. 410 (1892).

1 1 Gray, 317 (1854).

"And see also Prentice v. Brimhall, 123 Mass. 293 (1877); Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650 (1876); Biddell v. Brizzolana, 64 Cal. 354 (1883); Page v. Becker, 31 Mo 466 (1862); U. S. Mortgage Co. v. Hill, Mass. Dist. Ct. (1879); Gurnsey v. Rogers, 47 N. Y. 233 (1872).

280;

Loril

* Brown v. Stillman, 43 Minn. 126 (1890); Pardee v. Treat, 82 N. Y. 385 (1880); Clark v. Howard, 74 Hun, 229 (1893); Vrooman v. Turner, 60 N. Y. lard v. Clyde, 122 N. Y. 498 (1890); Durnhurr v. Rau, 135 N. Y. 219 (1892). ♦ Braman v. Dowse, 12 Cush. 227 (1853); Pike v. Brown, 7 Cush. 133 (1851). Locke v. Homer, 131 Mass. 93 (1881); Furnas v. Durgin, 119 Mass. 501 (1876), and cases cited on p. 507; Reed v. Paul, 131 Mass. 129 (1881); Williams v. Fowle, 132 Mass. 385 (1882).

without any promise; while still others consider that the mortgagor, when receiving the promise, acts as agent for the mortgagee, which act the latter may, and by bringing the action does, ratify and adopt. But none of them seem to deny the liability of the grantee to an action by his grantor to whom the promise is made, and from whom alone the consideration is received; and this view seems to leave the grantee liable to as many actions as there are creditors of the grantor whom he has agreed to pay. Some of the cases sustaining such actions are Burr. v. Beers;1 Thompson v. Thompson; Thorp v. Keokuk Coal Co.; Merriman v. Moore ;* Urquhart v. Brayton ; 5 Miller v. Billingway; Wood v. Moriarty;7 Crawford v. Edwards; Booth v. Conn. Mutual Life Ins. Co.9

8

There are several classes of cases, sometimes cited as supporting actions by a mere beneficiary, but which when carefully examined fall quite short of affirming such to be the general rule.

I. The first is where the consideration is advanced by and the promise is made to a third person, who is acting as agent or on behalf of the plaintiff, either known or not known to be such agent; for in such cases the consideration is in legal contemplation advanced by the plaintiff himself, and the promise is made to him.10 Some early cases seem to have held that a near relationship between the promisee and the plaintiff, such as father and son, would sufficiently constitute an agency, so that the action might be maintained by the son upon a promise made to the father." The modern view, however, is that such relationship does not, in and of itself, create an agency, and is at most only a circumstance tending to show an actual agency, and that something more must be shown than mere relationship to vary the rule applied in other cases.12

2. The second is where the plaintiff furnished some part of the consideration, and shared also in the promise; as where a debtor transfers all his property to a third person, who agrees with him and his creditors that he will pay the grantor's debts to them, and they assent to it, and discharge the original debtor; no doubt such creditors can recover of the promisor, for they part with a consider

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11 Dutton v. Poole, 2 Lev. 210 (1677); Felton v. Dickinson, 10 Mass. 287 (1813). 12 Tweddle v. Atkinson, 1 B. & S. 396; Marston v. Bigelow, 150 Mass. 45; Wilbur v. Wilbur, 17 R. I. 295.

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