In some of the states it is held that the doctrine allowing suit on a contract by a third person for whose benefit it is made applies as well to covenants or promises under seal as to simple contracts.37 In other states the contrary has been held, on the ground that assumpsit will not lie on a covenant under seal, and that it is only an action of assumpsit that will lie by a person for whose benefit a promise has been made to another.88
In several states it is expressly provided by statute that "a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." 39 And similar provisions giving the beneficiary a right to sue upon a contract made for his benefit exist in other states.40
By statute, in many of the states - no doubt in all the code states - it is expressly provided that every action must be prosecuted in the name of the real party in interest, except in certain cases; and under such a provision it has been held that the person for whose benefit a contract is made may sue thereon.*1
37 Bassett v. Hughes, 43 Wis. 319. And see Gifford v. Corrigan, 117 N. T. 257, 22 N. E. 756, 6 L. R. A. 610, 15 Am. St. Rep. 508; Coster v. City of Albany, 43 N. Y. 399; Riordan v. Presbyterian Church, 6 Misc. Rep. 84. 26 N. Y. Supp. 38; Kimball v. Noyes, 17 Wis. 695; McDowell v. Laev, 35 Wis. 171; Webster v. Fleming, 178 111. 140, 52 N. E. 975. Cf. Harms v. McCor-mick, 132 111. 104, 22 N. E. 511. See "Contracts," Deo. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
38 Hinkley v. Fowler, 15 Me. 285. And see Cocks v. Varney, 45 N. J. Eq. 72, 17 Atl. 108; Seigman v. Hoffacker, 57 Md. 321; Robbins v. Ayres, 10 Mo. 538, 47 Am. Dec. 125; Baldwin v. Emery, 89 Me. 496, 36 Atl. 994. Cf. Styles v. F. R. Long Co., 67 N. J. Law, 413, 51 Atl. 710. See "Contracts;' Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
39 Civ. Code Cal. § 1559; Civ. Code N. D. § 4688. And see 15 Harv. L. Rev. 778; Eastman Land & Investment Co. v. Long-Bell Lumber Co., 30 Okl. 555, 120 Pa. 276. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
40 Civ. Code La. art. 1890, Code Prac. La. art. 35; Code W. Va. c. 71, § 2; Edwards v. National Window Glass Jobbers' Ass'n (N. J. Sup.) 68 Atl. 800. And see City of Newport News v. Potter, 122 Fed. 321, 58 C. C. A. 483. See "Contracts," Dec. Dig. (Key-No.) § 187; Cent. Dig. §§ 798-807.
41 Bliss, Code PI. § 241; Pomeroy, Rem. & Rem. R. § 139. See Paducah Lumber Co. v. Water Supply Co., 89 Ky. 340, 12 S. W. 554, 7 L. R. A. 77, 25 Am. St. Rep. 536; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Stevens v. Flannagan, 131 Ind. 122, 30 N. E. 898; Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652; Faust v. Faust, 144 N. C. 383, 57 S. E 22. But it seems that a third person must establish a legal, or at least an equitable, right to enforce the contract independently of this provision. Ante, p. ----, and cases cited in note
----; Anson, Contr. (8th Ed.) 282, note by Prof. Huff cut. "The difficult question is whether the third person is the real party in interest." Professor Wil-
. Action by Third Party for Many Joint Contractors
If a person and a group of persons, such as an unincorporated society should enter into a contract, it might be convenient that a third person should be able to sue on behalf of the group. The general rule, however, that a contract cannot confer rights on persons not parties to it, applies. In a case in which the managers of an association, under powers of attorney executed by the members, sued upon a contract entered into by the association, it was held that they could not maintain the action, "for the simple reason * * * that the proper person to bring an action is the person whose right has been violated." "This is an attempt," it was further said, "to do what has been frequently, but fruitlessly, attempted before, viz., to get rid of the difficulty of a large number of people suing in their own names - to appoint a public officer without obtaining an act of parliament or a charter of incorporation.42
In some of the states, statutes have been enacted expressly providing that where the parties are very numerous, and it would be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.48