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.
In spite of the ease with which the courts in some of these cases disposed of the objection that the plaintiff was a stranger to the promise, and to the consideration, other judges continue to be troubled thereby. In a case in which A promised to B for value to pay B's debt to C, it was held that C could not maintain assumpsit against A on the ground that C " did nothing of trouble to himself or benefit to the defendant, but is a mere stranger to the consideration."1 The cases which were cited in support of C's right to recover,2 were cases in which C was closely related to B; and the court distinguished these cases from the case at bar on the theory that in marriage settlement contracts the beneficiary, C, performed the "meritorious act" in marrying the daughter of A, the promisor; and that in the other cases, "the nearness of the relation gives to" C "the benefit of the consideration performed by" B, who is C's near relation.
In a case decided shortly afterwards,3 A made a promise to B, his father, that in consideration of B's refraining from cutting certain wood on B's realty, A would pay a certain sum of money to B's daughter, C; and it was held that C could enforce such promise against A, "for the son hath the benefit by having of the wood and the daughter hath lost her portion by this means."4
Up to this point the authorities in favor of permitting C to maintain the action greatly outweigh the authorities against it. In a subsequent case,5 A promised to B to pay B's debt to C, in consideration of B's transferring a house to A. Out of the existing mass of authority only three cases were cited.6 "Without much debate the court held the plaintiff was a stranger to the consideration and gave judgment" for the defendant.7
1 Bourne v. Mason, 1 Vent. 6, 2 Keb. 454, 457, 527.
2 The case which is referred to specifically is, Sprat v. Agar, 2 Sid. 115.
3Dutton v. Poole, T. Jones 102, 1 Vent. 318, 332, 1 Freem. 471, T. Raymond 302, 2 Lev. 210, 3 Keb. 786, 814, 830, 836.
4Dutton v. Poole, T. Jones 102, 1 Vent. 318, 332, 1 Freem. 471, T. Raymond 302, 2 Lev. 210, 3 Keb. 786, 814, 830, 836.
5 Crow v. Rogers, 1 Strange 592.
6 In support of the theory that the beneficiary could not sue, Bourne v. Mason, 1 Vent. 6, 2 Keb. 457, 527, was cited.
In support of the theory that the beneficiary could sue, Dutton v. Poole, 1 Vent. 318. 332, 2 Lev. 210, and 1 Rolle's Abridgment 32, pl. 13, were cited.
While the theory that a beneficiary can sue seems to be accepted in subsequent obiter,8it was held in the next case, in which the question was presented,9 that a promise by A to pay B's debt to C, in consideration of B's performing services for A, can not be en-forced by C after B has. performed by rendering such services on the ground that the declaration "does not show any consideration for the promise moving from the plaintiff to the defendant," and that "this case is precisely like Crow v. Rogers (1 Strange 592), and must be governed by it."10
When the question was next presented,11 the only authorities cited in favor of the right of the beneficiary to sue were Bourne v. Mason,12 and the authorities cited therein, and also Thomas v. ---------.13 The court expressed its willingness to overrule the earlier decisions on the theory that they were rendered at a time at which love and affection was regarded as a sufficient consideration and it was not settled that a consideration must move from the promisee.14 These decisions have settled the English law, and it is now held that the beneficiary has no right of action upon the contract to which he is not a party and for which he does not furnish the consideration, although the contract is expressly made for his benefit.15 If B's sale, as broker, to A, of an article manufactured by C, amounts to a contract between A and B, restricting A's right to resell such article by fixing the price which he may charge therefor, C can not enforce such contract against A.16
7 Crow v. Rogers, 1 Strange 592.
8 "As to the case of Dutton v. Poolo, 1 Vent. 318, 332, it is a matter of surprise how doubt could have arisen in that case."
See also, Martyn v. Hind, Cowp. 437.
9Price v. Easton, 4 B. & Ad. 433
10 Price v. Easton, 4 B. & Ad. 433.
11Tweddle v. Atkinson, 1 B. & S. 393.
121 Vent. 6, 2 Keb. 457, 527.
13 Styles 461.
14 It is admitted that the plaintiff cannot succeed unless this case is an exception to the modern and well-established doctrine of the action of assumpsit. At the time when the cases which have been cited were decided the action of assumpsit was treated as an action of trespass upon the case, and therefore in the nature of a tort; and the law was not settled, as it now is, that natural love and affection is not a sufficient consideration for a promise upon which an action may be maintained; nor was it settled that the promisee cannot bring an action unless the consideration for the promise moved from him. The modern cases have, in effect, overruled the old decisions; they show that the consideration must move from the party entitled to sue upon the contract. It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued. It is said that the father in the present case was agent for the son in making the contract, but that argument ought also to make the son liable upon it. I am prepared to overrule the old decisions, and to hold that, by reason of the principles which now govern the action of assumpsit, the present action is not maintainable." Tweddle v. Atkinson, 1 B. & S. 393.