This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
With the development of indebitatus assumpsit,1 the theory was adopted that wherever debt would lie, indebitatus assumpsit would lie;2 and accordingly it was held that if B placed money or property in A's hands to pay over to C, C could bring an action of assumpsit upon A's promise.3 C's right to recover in assumpsit was especially clear where A had promised to C to pay the amount to him upon some additional consideration.4 as where C had agreed to give an extension of time.5 In some of the cases, this rule was laid down in obiter, but as a rule which was thoroughly well settled.6If B was C's executor, it was said that C could have sued if C had lived, and that therefore B could sue as C's executor; but that if C had not had a right of action upon the promise, B could have then sued in his own name, and the description of B, as executor, could be rejected as surplusage.7
1 Dyer, 21a, pl. 128; Harris v. De Ber-voir, Cro. Jac. 687, Clark's Case, God-boldt, 210; Shaw v. Sherwood, Cro. Eliz. 729, Owen 127 [sub nomine, Wher-wood v. Shaw, 1 Browne & Gold. 82; Shaw v. Norwood, Moore 667 and Wherwood v. Shaw, Yelv. 25].
2 Cramlington v. Evans, 2 Vent. 307 (obiter, as this was an action in case under the Law Merchant).
3 See Sec. 25 and 31.
41 Dyer, 20b (pl. 125).
1 See Sec. 31, and Sec. 1493 et seq.
2 See Sec. 31.
3Bafeild v. Collard, Aleyn 1; Levet v. Hawes, Cro. Eliz. 619, 652; Lever v. Heys, Moore 550; Bell v. Chaplain, Hardres' 321; Hornsey v. Dimocke, 1 Vent. 119; Davison v. Hasjip, 1 Vent. 152.
4 Oble v. Dittlesfield, 1 Vent. 153.
5 Oble v. Dittlesfteld, 1 Vent. 153. -
.4195 Contracts for Benefit of Third Person Sec. 2377
The difficulties that bothered the English courts in later years, growing out of the fact that C was a stranger to the promise and also a stranger to the consideration, did not seem to trouble the courts at this time.8 The objection that the promise was not made to the beneficiary was answered by holding that the person who had the interest in the promise, and not the person by whom the promise was made, was the party who could bring an action thereon,9 or by holding that the right of action was in the person "to whom the satisfaction was to be made."10 If the plaintiff alleged that the defendant had received a certain sum of money from diverse persons to the use of the plaintiff, such allegation was sufficient after a verdict as against a motion in arrest of judgment, and it was not necessary to allege from whom the defendant received such money, since the consideration was executed.11
The question of pleading such a contract is discussed very little. In most of the cases the reference to the writ or to the declaration seems to indicate that the promise was pleaded in exact accordance with the facts, namely, as a promise by A, the defendant, to B, for the benefit of C, the defendant. It was said, however, that if C wished to sue upon a promise which was made by A to B for the benefit of C, C should allege that the promise was made to C, and that under such allegation the promise which was actually made to 3 could be given in evidence.12 If this was the general rule of pleading, and if the forms of writs and declarations were drawn in accordance with this theory, it may be that we have here the reason that the courts at a later period, finding the rule of pleading and forgetting the rule of evidence, came to hold that C could not maintain an action against A upon such promise.13
6 Hornsey v. Dimocke, 1 Vent. 119; Brown v. London, 1 Vent. 152.
7 Hornsey v. Dimocke, 1 Vent. 119.
See also, Sadler v. Paine, Sav. 23; Legat's Case, Latch 206 (principal could declare on promise to his agent); Core's cases (1 Dyer, 21a) in argument. •
8 De la Bar v. Gold, Keb. 44 (13 Car. II [Pasch.], pl. 117), Keb. 63 (13 Car. II [Trin.] pl. 31); Gold v. Dela Bar, Keb. 121 (13 Car. II [Mich.], pl. 30); Corny v. Collidon, 1 Freem. 284.
"It matters not from whom the consideration moveth, but who hath the benefit thereby." De la Bar v. Gold, Keb. 44 (13 Car. II [Pasch.], pl. 117), Keb. 63 (13 Car. II [Trin.], pl. 31); Gold v. Dela Bar, Keb. 121 (13 Car, II [Mich.l, pl. 30).
9 "Where a promise is made to a stranger upon a good consideration, he that hath interest in the promise shall have the action." Corny v. Collidon, 1 Freem. 284.
10Hadves v. Levit, Hetley 176.
11 Babington v. Lambert, Moore 854.