If two persons should make a contract in which one promises to do something for a third person, all three might be willing that such third person should have all the rights of an actual contracting party, and should be allowed to sue on the promise. In England, however, it is established that the action cannot be maintained. If a person makes a promise to another, the consideration for which is a benefit to be conferred by the promisee on a third person, the contract confers no right on the third person to sue. In a leading English case the defendant had made a promise that, in consideration of the promisee's working for him, he would pay the plaintiff a sum of money, and it was held that the plaintiff could not recover on the promise. The members of the court stated in different forms the same reason for their decision. One said that the declaration did not "show any consideration for the promise moving from the plaintiff to defendant"; another, that "no privity is shown between the plaintiff and the defendant"; another, that it was "consistent with the matter alleged in the declaration that the plaintiff may have been entirely ignorant of the arrangement" between the promisee and the defendant; and another, that there was "no promise to the plaintiff alleged." 14
It was at one time thought in England that, if the person who was to take a benefit under the contract was nearly related by blood to the promisee, a right of action would vest in him;15but such a doctrine, if it ever really existed, has been overruled. In a case in which the respective fathers of the parties to a marriage had entered into a contract between themselves only that each should pay a sum of money to the husband, and expressly stipulated that the latter should have power to sue therefor, it was held that an action by him would not lie. "Some of the old decisions," it was said, "appear to support the proposition that a stranger to the consideration of a contract may maintain an action upon it if he stands in such a near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration. * * * It is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit." 16
14rice v. Easton, 4 Barn. & Adol. 433. And see Tweddle v. Atkinson, 1 Best & S. 393. See "Contracts," Dec. Dig. (Key-N.) % 187; Cent. Dig. §§ 798-807.
15 Dutton v. Poole, 2 Lev. 210; Bourne v. Mason, 1 Vent. 6. See "Contracts;' Dec. Dig. (Key-No) § 187; Cent. Dig. §§ 798-807.
In courts of equity, language has been used, sometimes very explicit, to the effect that, where money is payable to one person for the benefit of another, the latter "can claim under the contract as if it had been with himself";17 but the later cases go to show that even in equity a person who was not a party to a contract cannot acquire rights thereunder and sue thereon.18 The beneficiary of a contract acquires no rights ex contractu, even in equity. If the contract is so framed as to make one of the parties trustee for a third person for whose benefit it is made, such third person acquires rights by virtue of the trust. A mere contract, however, between two parties, that one of them shall pay money to a third, does not make that third person a cestui que trust. There must be some declaration of trust by one of the contracting parties in favor of the third person.18