16 Tweddle v. Atkinson, 1 Best & S. 393. See "Contracts," Dee. Dig. (Kep-
No.) § 187; Cent. Dig. §§ 798-807.
17 Touche v. Warehousing Co., 6 Ch. App. 671; Spiller v. Skating Rink, 7 Ch. Div. 368. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
18 Eley v. Assurance Co., 1 Exch. Div. (Ct. App.) 88; In re Empress Eng. Co., 16 Ch. Div. 125. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
19 Two English cases, decided about the same time, are cited by Anson as illustrating this distinction. In one it was held that a clause in a contract of partnership which provided for the payment of an annuity, for five years after the determination of the partnership, to the retiring partner or his widow, created a trust in favor of the widow. Murray v. Flavell, 25 Ch. Div. 89. On the other hand, where a person had employed the plaintiff in the formation of the defendant company, and afterwards agreed with the company that it should pay the plaintiff for his services, it was held that the agreement gave no right of action to the plaintiff. In re Rotheram Alum Co., 25 Ch. Div. 104. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. Cent. Dig. §§ 798-807.
20 Exchange Bank of St Louis v. Rice, 107 Mass. 37, 9 Am. Rep. 1; Rogers v. Stone Co., 130 Mass. 581, 39 Am. Rep. 478; Wheeler v. Stewart, -it Mich. 445, 54 N. W. 172; Linneman v. Moross' Estate, 98 Mich. 178, 57 N. W. 103, 39 Am. St. Rep. 528; Edwards v. Clement, 81 Mich. 513, 45 N. W. 1107; Plpp v. Reynolds, 20 Mich. 88; Woodland v. Newball's Adm'r (C. C.) 31 Fed. 4.",4; Adams v. Kuehn, 119 Pa. 76, 13 Atl. 184; Wilbur v. Wilbur, 17 R 1. 295, 21 Atl. 497; Baxter v. Camp, 71 Conn. 245, 41 Atl. 8U3, 42 L. R. A. 514, chusetts court, "is that a person who is not a party to a simple contract, and from whom no consideration moves, cannot sue on the contract; and, consequently, that a promise made by one person to another for the benefit of a third person, who is a stranger to the consideration, will not support an action by the latter." 21
There is no doubt that in this country courts of equity recognize the apparent exception to this rule, already mentioned in the case of trusts; and that where a contract, consisting of a promise for the benefit of a third person, is so framed as to make the promisor a trustee for such third person, the latter may sue to enforce the trust.22
In addition to this, there is another apparent exception. This exception is in cases where, under a contract in which a promise is made for the benefit of a third person, assets come to the promisor's hands, or under his control, which in equity belong to the third person; or, as it has been expressed, "those cases in which the defendant has in his hands money which in equity ' and good conscience belongs to the plaintiff, as where one person receives from another money or property as a fund from which certain creditors of the depositor are to be paid, and promises, either expressly *or by implication from his acceptance of the money or property without objection to the terms on which it is delivered to him, to pay such creditors." 23 In such cases the it 26 Even in Massachusetts, where it has been directly held, the court has since expressed a doubt on the question, even if it has not expressly held the contrary.27
71 Am. St Rep. 169; Morgan v. Randolph & Clowes Co., 73 Conn. 39G, 47 Atl. 658, 51 L. R. A. 653; Knights of the Modern Maccabees v. Sharp, 163 Mich. 449, 128 N. W. 786, 33 L. R. A. (N. S.) 780. And see Sheppard v. Bridges, 137 Ga. 615, 74 S. E. 245. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
21 Exchange Bank of St. Louis v. Rice, 107 Mass. 37, 9 Am. Rep. 1; BORDEN v. BOARDMAN, 157 Mass. 410, 32 N. E. 469, Throckmorton Cas. Contracts, 314. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
22Union Pac. R. Co. v. Dnrant, 95 U. S. 576, 24 L. Ed. 391; Chace v. Chapin, 130 Mass. 128; Preachers' Aid Soc. v. England, 106 I11. 125; Mory v. Michael, 18 Md. 227; Harrisburg Bank v. Tyler, 3 Watts & S. (Pa.) 373. And see Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807; "Trusts," Dec. Dig. (Key-No.) § 35; Cent. Dig. §§ 45-50.
23Exchange Bank of St. Louis v. Rice, 107 Mass. 37, 9 Am. Rep. 1; Howes v. Scott, 224 Pa. 7, 73 Atl. 186; Barry v. Jordan, 116 Minn. 34, 133 N. W. 78. The exceptions to the rule that a stranger to a contract cannot maintain an action on it were stated by the supreme court of the United States in language frequently referred to by that court with approval, as follows: "There are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets third person may sue the promisor in his own name. The rights of the third person are not conferred upon him by the contract between the promisor and promisee, but arise out of a contract created by law, or quasi contract, between the promisor and the third person.24
The exception formerly recognized in England, but since overruled there, to the effect that, if a third person for whose benefit a contract is made is nearly related by blood to the promisee; a right of action on the promise vests in him, has been recognized in this country,28 but some of the courts have refused to recognize 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." Second Nat. Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75. See, also, Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct, 494, 33 L. Ed. 667; Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210; Union Mut. Life Ins. Co. v. Hanford, 143 U. S. 1S7, 12 Sup. Ct. 437, 36 L. Ed. 118; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613. The question whether the remedy of the mortgagee against a grantor who has assumed the mortgage is in law in his own right, or in equity and in the right of the mortgagor only, is to be determined by the law of the place where the suit is brought. Willard v. Wood, supra; Union Mut, Life Ins. Co. v. Hanford, supra; Johns v. Wilson, supra. See, also, Adams v. Shirk, 105 Fed. 659, 44 C. C. A. 653. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 198-807.
24 Carnegie v. Morrison, 2 Metc. .(Mass.) 381; Putnam v. Field, 103 Mass. 556; Spencer v. Towles, 18 Mich. 9; Grim v. Iron Co., 115 Pa. 611, 8 All. 595; Hosford v. Kanouse, 45 Mich. 620, 8 N. W. 567; Second Nat. Bank v. Grand Lodge, 98 U. S. 123, 25 L. Ed. 75; Hostetter v. Hollinger, 117 Pa. 606, 12 Atl. 741; O'Neal v. Board, 27 Md. 227; Wood v. Moriarty, 15 R. I. 518, 9 Atl. 427; Lewis v. Sawyer, 44 Me. 332; Keene v. Sage, 75 Me. 138; Taylor v. Taylor, 20 I11. 650. See "Contracts," Dec. Dig. (Key-No.) § 167; Cent. Dig. §§ 798-807.
25 Felton v. Dickinson, 10 Mass. 287; Benge v. Hiatt's Adm'r, 82 Ky. 666, 56 Am. Rep. 912. See, also, Buchanan v. Tilden, 158 N. Y. 109. 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454; Everdell v. Hill, 27 Misc. Rep. 285, 58 N. Y. Supp. 447. See "Contracts," Deo. Dig. (Key-No.) § 287; Cent. Dig. §§ 798-807.