A mere promise to indemnify against damages must also be distinguished. Here the promisor's liability does not arise until the promisee has suffered loss or expense. Until then the promisee has no right of action, and consequently one claiming damages can assert no derivative right against the promisor, much less a direct right,28 Nor can the promisee sue for the benefit of persons claiming damages.29
A third person's benefit under a contract may be still more incidental; for instance, where the failure of a grantee of land to keep his promise to the grantor to pay a mortgage, resulted in a loss to the plaintiff of an interest in the land when the mortgagee foreclosed the mortgage. The New York court rightly refused relief.30 So a contractor cannot enforce a contract made by a lumber dealer for his own benefit with the owner of a house, which provided that the contractor should be employed to make the repairs for which the lumber dealer advanced money.31 The contract was not made even partially for the plaintiff's benefit, and as the promisee was under no obligation to the plaintiff it is not possible to work out an indirect right.32 A Louisana case 33 suggests another distinction.
27 See supra, Sec. 395, n. 4.
28Wilson v. Shea, 29 Cal. App. 788, 157 Pac. 543; Hill v. Omaha, etc., R. R. Co., 82 Mo. App. 188; French v. Vix, 143 N. Y. 90, 37 N. E. 812; Embler v. Hartford Ins. Co., 158 N. Y. 431, 58 N. E. 212; Mansfield v. Mayor of New York, 165 N. Y. 208, 58 N. E. 889. An insured person was denied a right of action against a company reinsuring the insurer in Vial v. Norwich Union F. Ins. Co., 257 111. 355, 100 N. E. 929,44 L. R. A. (N. S.) 317, Ann. Cas. 1914 A. 1141. Cf. the cases cited therein where the reinsurer undertook to pay directly to the insured, instead of to the insurer, and where the latter was allowed a direct action against the reinsurer.
29 New Haven a. New Haven & D. R. Co., 62 Conn. 252, 25 Atl. 316, 18 L.R.A.256.
30 Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49. See also Pearson v. Bailey, 180 Mass. 229, 62 N. E. Rep. 265.
31 Hollister v. Sweet, 32 S. Dak. 141, 142 N. W. 255.
32 See also Constable v. National Steamship Co., 154 U. S. 51, 14 S. Ct. 1062, 38 L. Ed. 903; Hennessy v. Bond, 77 Fed. Rep. 403, 405, 48 U. S. App. 89,23 C. C. A. 203.
33 New Orleans St. Joseph's Assoc. v. Magnier, 16 La. Ann. 338.
A number of hatters agreed to close their shops on Sundays, and for any breach it was agreed that the offender should pay $100 to a specified charitable society. It was held that the society could not recover. The main object of the contract undoubtedly was not to benefit the plaintiff, but to enforce performance of a promise entered into by the parties solely for their own benefit by the imposition of a penalty, but on a certain contingency the promise to pay $100 was performable. If this contingency happened, there was a clear intent that the plaintiff should have the sole benefit. There seems no difficulty in having in the same contract separate promises for the benefit of different persons. The plaintiff might well have been allowed to recover as sole beneficiary of the promise sued upon.34 But nowhere would the mere fact that one not a party to a contract would be benefited by its performance give him a right.35
34 See Sloss-Sheffield S. & I. Co. v. Taylor (Ala. App.), 77 So. 79.
35 Kenfield Publishing Co. v. Baum-gartner, 189 111. App. 413; Standard
Gas Power Corp. v. New England Casualty Co., 90 N. J. L. 570, 101 Atl. 28; Hollister v. Sweet, 32 S. Dak. 141, 143 N. W. 255.