80 See infra, Sec.371,n.
81 See cases in preceding notes.
82 Vrooman v. Turner, 69 N. Y. 280, 283, 25 Am. Rep. 195; Beveridge v. N. Y. Elevated R. R., 112 N. Y. 1, 28, 19 N. E. 489, 2 L. R. A. 648; Lorillard v. Clyde, 122 N. Y. 498, 25 N. E. 817,10 L. R. A. 113; Dumherr v. Rau, 135 N. Y. 219, 32 N. E. 49; Towneend v. Rackham, 143 N. Y. 516, 38 N. E. 731; Sullivan v. Sullivan, 161 N. Y. 554, 68 N. E. 116; Coleman v. Hiler, 85 Hun, 547, 33 N. Y. S. 357. See also Glens Falls Gas Light Co. c Van Vranken, 11 N. Y. App. Div. 420, 43 N. Y. S. 339; Opper v. Hiisch, 68 N. Y. S. 87S, 33 N. Y. Misc. 560. In Ros-seau v. Rouss, 180 N. Y. 118, 72 N. E. 918, the court said, "A promise for the benefit of a third person must not only be supported by a sufficient consideration, but the one furnishing it must have a legal interest in the performance of the promise." Compare the cases of Little v. Banks, 85 N. Y. 258, and Todd p. Weber, 95 N. Y. 181, 47 Am. Rep. 20.
83 Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. 454; Bouton v. Webb, 170 N. Y. 664, 63 N. E. 539; Case v. Case, 203 N. Y. 263,98 N. E. 440, Ann. Cas. 1913 B. 311; Knowles v. Erwin, 43 Hun, 150, affd. 124 N. Y. 633, 26 N. E. 759; Whiteomb v. Whitcomb, 92 Hun, 443, 36 N. Y. S. 607; Baboock v. Chase, 92 Hun, 264, 38 N. Y. S. 879; Luce v. Gray, 92 Hun, 699, 36 N. Y. S. 1065. In all these cases the promise was to pay money to a dependent relative. See also De Cicco v. Schweuer, 221 N. Y. 431, 117 N. E. 807, L. R. A. 1918 E. 1004, Ann. Cas. 1918 C. 816 (affianced wife).
84 In Beaver v. Ransom, 224 N. Y. 233, 120 N. E, 639, a promise to pay the niece of the promisee's wife was enforced. In Pond v. New Rochelle Water Co., 183 N. Y. 330,76 N. E. 211, 1L.R.A. (N.8.)958, 5Ann.Cas.504, an inhabitant of a village to which the defendant had contracted to supply water was allowed to sue for breach of the contract. In Smyth v. New York, 203 N. Y. 106, 96 N. E. 409, the plaintiff was allowed to sue a contractor who had agreed with the city to pay for injuries to property abutting on a proposed subway. The plaintiff's property was injured and the court con-ceded that the plaintiff had no direct right against the city. See also Farns-worth v. Boro Oil & Gas Co,, 216 N. Y. 40, 48, 109 N. E. 860. In Gulla p. Barton, 164 N. Y. App. Div. 293, 149 N. Y. S. 952, the plaintiff was a member of a trade union with which the defendant had contracted to pay his employees certain wages. The plaintiff was allowed to sue on this promise. In Seaver 0. Ransom, 224 N. Y. 233, 120 N. E. 639, 640, Pound, J., for the court said: "In New York the right of the beneficiary to sue on contracts made for his benefit is not clearly or simply defined. It is at present confined: First. To cases where there is a pecuniary obligation running from the promisee to the beneficiary, 'a legal right founded upon some obligation of the promisee in the third party to adopt and claim the promise as made for his benefit.' Secondly. To cases where the contract is made for the benefit of the wife or child of a party to the contract. . . .
"The right of the third party is also upheld in, thirdly, the public contract cases, where the municipality seeks to protect its inhabitants by covenants for their benefit; and, fourthly, the cases where, at the request of a party to the contract, the promise runs directly to the beneficiary although he does not furnish the consideration. It may be safely said that a general rule sustaining recovery at the suit of the third party would include but few classes of caaes not included in these groups, either categorically or in prin-ciple."
85Kramer v. Gardner, 104 Minn. 370,116 N. W. 925,22 L. R. A. (N. S.) 492; Clark v. P. M. Hennessey Const. Co., 122 Minn. 476, 142 N. W. 873; and see Minnesota cases, infra, Sec. 381.
86 Phoenix Ins. Co. 9. Trenton Water Co., 42 Mo. App. 118; Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S. W. 784, 23 L. R. A. 146, 41 Am. St Rep. 654; St. Louis v. Von Phul, 133 Mo. 561, 34 s W. 843, 54 Am. St. Rep. 695; Devers v. Howard, 144 Mo. 671, 46 S. W. 625; Glencoe Lime Co. v. Wind, 76 Mo. App. 163.
87 Crone v. Stinde, 156 Mo. 262, 56 S. W. 863, 56 S. W. 907.
88 Merchants' Union Trust Co. 9. New Philadelphia G. Co. (Del. Ch.), 83 Atl. 520; Fidelity & Casualty Co. v. Martin, 163 Ky. 12, 173 S. W. 307; Sample v. Hale, 34 Neb. 220, 51 N. W. 837; Lyman v. Lincoln, 38 Neb. 794, 57 necessity results from a confusion of the two distinct types of cases. The early New York cases bearing on the right of a creditor to sue one who had promised the debtor to pay the debt recognized that the creditor's right was derivative and that it was by virtue of his claim against the debtor that he acquired a right to sue upon the promise to the debtor. But the requirement of a debt or duty is wholly inapplicable to contracts for the sole benefit of a third person. It might equally well be said that a gift should be invalid unless the donor was under a duty to make it. Moreover, if such a requirement were proper a moral obligation could not suffice. When an alleged obligation is of such a character that the obligee cannot enforce it directly against the obligor, it can no more furnish ground for a derivative right against one who has promised the obligor to pay it, than it could for garnishment as a debt due to the obligor. In the first ease in New York which definitely established the requirement of a duty from the promisee to the plaintiff,89 it was true not only that the promisee was under no duty to the plaintiff, but also that the plaintiff was not intended by the promisee as the beneficiary of the contract. The benefit expected to result to the plaintiff was merely incidental to the general object of the contract. This was sufficient ground for the decision; but in the later cases where the doctrine was applied the result was needlessly to defeat an intended gift; and in other cases where the court enforced the promise unsatisfactory reasoning is resorted to, in order to escape the supposed necessity of finding some duty owed by the promisee.