1 Thompson v. Percival, 5 B. & Ad. 932, where a separate bill was given for a joint debt, Lord Denman said: *' It appears to us that the facts proved raised a question for the jury, whether it was agreed between the plaintiff and James, that the former should accept the latter as their sole debtor and should take the bill of exchange accepted by him alone, by way of satisfaction for the debt due from both." The same point is ruled in Reed v. White, 5 Esp. 122. See previous note. But see Evans v. Drummond, 4 Esp. 89; and Baillie v. Moore, 8 Q. B. 497; Gifford v. Whittaker, 6 Q. B. 249.
§ 485. In America, as well as in England, there has been no little fluctuation concerning the right of a stranger to enforce a promise made for his benefit. But it has been very recently held, upon a consideration of the authorities, that the general rule of law is, that a person who is not a party to a contract, and from whom no consideration moves, cannot sue on the contract, and that consequently a promise made by one person to another, for the benefit of a third person who is a stranger to the consideration and promise, will not support an action by the latter.2 But there is said to be an exception to the rule in those cases in which the defendant has in his hands money which in equity and good conscience belongs to the plaintiff; and other exceptions have been suggested.3 And where
1 Lilly v. Hays, 5 Ad. & El. 550. See post § 574.
2 Exchange Bank v. Rice, 107 Mass. 37 (1871). When such a promise is within the statute of frauds, see Brightman v. Hicks, 108 Mass. 246 (1871).
3 Ibid. In this case the plaintiffs were indorsees of a bill of exchange. After the plaintiffs had taken the bill, the defendants, who were the drawees ©f the same, and had dishonored it, promised the drawer to accept the bill upon the arrival of cotton, which was afterwards received; and upon this promise the defendants were sued. Mr. Justice Gray, who delivered the judgment of the court, after stating the rule as given in the text, proceeded to say: "The unguarded expressions of Chief Justice Shaw in Carnegie v. Morrison, 2 Met. 381, and Mr. Justice Bigelow in Brewer v. Dyer, 7 Cush. 337, to the contrary, on which the learned counsel for the plaintiffs relied at the argument, were afterwards, and while those two distinguished judges continued to hold seats upon this bench, qualified, the limits of the doctrine defined, and a disinclination repeatedly expressed to admit new exceptions to the general rule, in unanimous judgments of the court, drawn up by Mr. Justice Metcalf, and marked by his characteristic legal learning and cautious precision of statement. Mellen v. Whipple, 1 Gray, 317; Millard v. Baldwin, 3 Gray, 484; Field v. Crawford, 6 Gray, 116; Dow v. Clark, 7 Gray, 198. Those judgments have since been treated as settling the law of Massachusetts upon this subject. Colburn v. Phillips, 13 Gray, 64; Flint v. Pierce, 99 Mass-. 68.
"The first and principal exception stated by Mr. Justice Metcalf to the general rule consists of those cases in which the defendant has in his hands money which in equity and good conscience belongs to the plaintiff; as where one person receives from another money or property as a fund from which certain creditors of the depositor are to be paid, and promises, either the defendant accepts the money or property, and promises the plaintiff to hold it to his use, he thereby constitutes himexpressly, or by implication from his acceptance of the money or property without objection to the terms on which it is delivered to him, to pay such creditors. That class of cases, as was pointed out in 1 Gray, 322, includes Carnegie v. Morrison and most of the earlier cases in this Commonwealth; as well as the later cases of Frost v. Gage, 1 Allen, 262, and Putnam v. Field, 103-Mass. 556.
"The only illustration which the decisions of this court afford, of Mr. Justice Metcalf's second class of exceptions, is Felton v. Dickinson, 10 Mass. 287, in which it was held, in accordance with a number of early English authorities, and hardly argued against, that a son might sue upon a promise made for his benefit to his father. Those cases, with the proposition on which they have sometimes been supposed to rest, that, by reason of the near relationship between parent and child, the latter might be thought to have an interest in the consideration and the contract, and the former to have entered into the contract as his agent, are not now law in England. Tweddle v. Atkinson, 1 B. & S. 393; Addison on Con. (6th ed.) 1040; Dicey on Parties, 84. And this case does not require us to consider whether they ought still to be followed here.
"The third exception admitted by Mr. Justice Metcalf is the case of Brewer v. Dyer, 7 Cush. 337, in which the defendant made a written promise to the lessee of a shop to take his lease (which was under seal) and pay the rent to the lessor according to its terms, entered into possession of the shop with the lessor's knowledge, paid him the rent quarterly for a year, and then, before the expiration of the lease, left the shop, and was held liable to an action by the lessor for the rent subsequently accruing. That case may perhaps be supported on the ground that such payment and receipt of the rent, after the agreement between the defendant and the lessee, warranted the inference of a direct promise by the defendant to the lessor to pay the rent to him for the residue of the term. See McFarlan v. Watson, 3 Comst. 286. It certainly cannot be reconciled with the later authorities without limiting it to its own special circumstances, and affords no safe guide iu the decision of the present case.
"The plaintiffs are then obliged to fall back upon the first exception to the general rule. But they fail to bring their case within that exception, or within any of the authorities to which they have referred us.
"In Carnegie v. Morrison, 2 Met. 381, the defendants, having funds in cash or credit of the plaintiffs1 debtor, gave him a letter of credit, which was shown to the plaintiffs, and on the faith of which they drew the bill for the amount of which they sued the defendants; and the drawing of that bill, whereby they made themselves liable to the drawer thereof, was a consideration moving from them. In Lilly v. Hays, 5 Ad. & El. 548; s. c. 1 Nev. & Per. 26, the defendant, as the jury found, had authorized the plaintiff to be told that the defendant had received the money to his use, and thus promself agent of the plaintiff; and the agency is said to be the consideration for the promise.1 But if the defendant act ised the plaintiff to pay it to him. So in Walker v. Rostron, 9 M. & W. 411, the defendant had promised the plaintiff to pay the sum in question. And the rule established by the modern cases in England, as laid down in the text-books cited for the plaintiffs, does not permit the person for whose benefit a promise is made to another person from whom the only consideration moves to maintain an action against the promisor, unless either the latter has also made an express promise to the plaintiff, or the promisee acted as the plaintiff's agent merely. Met. Con. 209; Addison on Con. (6th ed.) 630, 1041; Chit. Con. (8th ed.) 53. Where the promisee is in feet acting as the agent of a third person, although that is unknown to the promisor, the principal is the real party to the contract, and may therefore sue in his own name on the promise made to his agent. Sims v. Bond, 5 B. & Ad. 389; s. c. 2 Nev. & Man. 608; Huntington v. Knox, 7 Cush. 371; Berry v. Page, 10 Gray, 398; Hunter v. Giddings, 97 Mass. 41; Ford v. Williams, 21 How. 287.