The commonest defence, that of discharge by rescission or release, is different. In the case of a sole beneficiary it is like the attempted revocation of a gift. The promisor for good consideration has given the beneficiary a right. Later he seeks to take it away by procuring the extinction of the promise. If it be admitted that the beneficiary has a direct right of his own, it ought not to be extinguished without his consent. The only question can be, when does the beneficiary's right arise - when the promise for his benefit was made or when he was notified of it or assented to it? For unless a right has vested in the beneficiaiy before the -rescission or release he cannot object. The question is analogous to that arising upon a gift of property or the creation of a trust for the benefit of another. As a gift is a pure benefit to the donee there seems no reason why his assent should not be presumed, unless and until he expresses dissent.5
3aSee infra, 5813.
4Episcopal Mission v. Brown, 168 U. 8. 222,15 S. Ct. 833,39 L. Ed. 960; Pugh d. Barnes, 108 Ala. 167, 19 So. 370; Stuyvesant v. Western Mortgage Co., 22 Col. 28,83, 43 Pac 144; Miller v. Hughes, 95 Ia. 223, 63 N. W. 680; see aim Willard v. Wood, 164 U. S. 602, 521, 17 S. Ct. 176, 41 L. Ed. 531; Loeb v. Willis, 100 N. Y. 231, 3 N. E. 177. But see apparently contra Cress v. Blodgett, 64 Mo. 449; Commercial Bank v. Wood, 7 W. A 8. 89; Fulmer v. Wightman, 87 Wis. 573, 58 N. W. 1106. In Missouri and Nebraska it has been held that a surety for the promise of a contractor to a district or municipality to pay for his labor and materials is liable to workmen and material men in spite of the fact, that the promisee, the district or municipality, has paid the contractor during the progress of the work to an amount not allowed by the contract. The Missouri decision relies on the fact that the plaintiffs had become creditors on the faith of the defendant's suretyship before the promisee had committed any breach of duty. The Nebraska decisions make no such distinction. School District v. livers, 147 Mo. 680, 49 S. W. 507; Doll v. Crume, 41 Neb. 656, 69 N. W. 806; Kaufmann v. Cooper, 46 Neb. 644, 66 N. W. 796; King v. Murphy, 49 Neb. 670. 68 N. W. 1029; Sailing v. Morrell, 97 Neb. 454, 160 N. W. 195. See also United States Fidelity etc. Co. v. United States, 191 U. S. 416, 24 S. Ct. 142, 48 L. Ed. 242. Cf. State v. Adams, (Ind. 1919), 118 N. E. 680, 681.
According to this view the sole beneficiary acquires a right immediately upon the making of the contract and any subsequent rescission is ineffectual. There is weighty authority in support of this view,6 though there is also authority to the contrary.7 The almost universal doctrine that the beneficiary of a life insurance policy acquires a vested right of which he cannot be deprived subsequently is in accord.8
5 Ames, Cas. Trusts, 2d ed., 232-234.
6 Henderson v. McDonald, 84 Ind. 149, and Waterman p. Morgan, 114 Ind. 237, 16 N. E. 590; Thompson v. Gordon, 3 Strobh. 196. See also Knowles v. Erwin, 43 Hun, 150, affd., 124 N. Y. 633, 26 N. E. 759. A few cases of the debtor and creditor type seem to hold a similar doctrine. Star-bird v. Cranston, 24 Col. 20, 48 Pac. 652; Bay p. Williams, 112 111. 91, 54 Am. Rep. 209; Cobb v. Heron, 78 111. App. 654, 180 111. 49, 54 N. E. 189; Rogers v. Gosnell, 68 Mo. 589; Tweed-dale p. Tweeddale, 116 Wis. 517, 93 N. W. 440, 61 L. R. A. 509, 96 Am. St. Rep. 1003 (overruling Bassett v. Hughes, 43 Wis. 319, and apparently applicable either to debtor or creditor type of case, or sole beneficiary); Sedgwick v. Blanchard, 164 Wis. 421, 160 N. W. 267.
7 In People's Bank & Trust Co. v. Weidinger, 73 N. J. L. 433,64 Atl. 179, a contract for the sole benefit of children of the contracting parties was held revocable by either of them until acted on by the other parties; being gratuitous so far as the beneficiaries were concerned. The death of one of the promisors was accordingly held a revocation. The court treats the case as analogous to promises in subscription papers which are generally held revocable until acted on. See supra, Sec. 116. The analogy, however, seems far from perfect.
8Numerous cases are collected in Cooley, Ins. Briefs, 3755, and 12 Col. L. Rev. 551. See supra, Sec. 369. Also Central Nat. Bank p. Hume, 128 U. S. 195, 206, 9 S. Ct. 41, 32 L. Ed. 370, L. R. A. 1916 A. 868; Johnson p. New York L. I. Co., 56 Colo. 178, 138 Pao. 414; Desforges's Succession, 135 La. 49, 64 So. 978, 52 L. R. A. (N. S.) 689; Virgin v. Marwick, 97 Me. 578, 55 Atl. 520; Jacobs p. Strumwasser, 84 N. Y. Misc. 28, 145 N. Y. S. 916; Mutual Benefit L. I. Co. v. Cummings, 66 Or. 272, 133 Pac. 116. Even the divorce of a wife named as beneficiary will not