"In the case at bar the plaintiffs had acquired no title in the cotton against which the draft was drawn. The bill of lading was not attached to the draft, or made payable to the holder thereof, or delivered to the plaintiffs. The case is thus distinguished from Allen v. Williams, 12 Pick. 297, and Michigan State Bank v. Gardner, 15 Gray, 362, cited at the argument. The cotton was not of sufficient value to pay the draft, and the balance of account between the defendants and the drawer, at the time of their receipt and sale of the cotton, and ever since, was in favor of the defendants. There is no ground therefore for implying a promise from the defendants to the plaintiffs to pay to them either the amount of the draft or the proceeds of the cotton. Tiernan v. Jackson, 5 Peters, 580; Cowperthwaite v. Sheffield, 1 Sandf. 416, and 3 Comst. 243; Winter v. Drury, 1 Seld. 525; Yates v. Bell, 3 B. & Aid. 613. The plaintiffs did not take the draft or make advances upon the faith of any promise of the defendants, or of any actual receipt by them of the cotton or the bill of lading, but solely upon the faith of the drawer's signature and implied promise that the defendants should have funds to meet the draft. The whole consideration for the defendants1 promise moved from the drawer and not from the plaintiffs. And the defendants made no promise to the plaintiffs. Their only promise to accept the draft was made to Hill, the drawer, after the draft had been negotiated to the plaintiffs; and there is no proof that the defendants authorized that promise to be shown to the plaintiffs, or that Hill, to whom that promise was made, was an agent of the plaintiffs. His relation to them was that of drawer merely as agent of the debtor in the matter, he .will be person ally liable, it seems, only in case of an express promise to the plaintiff.1 and payee, not of agent and principal. To infer, as suggested in behalf of the plaintiffs, that he was their agent in receiving the defendants1 promise, so that they might sue them thereon in their own name, would be unsupported by any facts in the case, and would be an evasion of the rules of law, which will not allow any person who took the draft before that promise was made to maintain an action upon that promise, either as an acceptance or a promise to accept."
1 Lilly v. Hays, 5 Ad. & E. 548; Exchange Bank v. Rice, and notes, supra.
The facts of several late New York cases may bring them within the principal exception above mentioned, by which the right of action of a third person is allowed. See Delaware & Hudson Canal Co. v. Westchester Co. Bank, 4 Denio, 97; Dingeldein v. Third Avenue R. Co., 37 N. Y. 575 (1868); Hall v. Robbins, 4 Lans. 463; 61 Barb. 33 (1871); Lawrence v. Fox, 20 N. Y. 268 (1859). The rule of the liability of the defendant is, however, usually stated without qualification in these and other cases. See also Lilly v. Hays, 5 Ad. & E. 548. In this case money had been put into the hands of the defendant for the plaintiff, to whom the defendant said he would pay it; and the facts were communicated to the plaintiff by the defendant's authority. The defendant on being sued objected that there was no consideration from the plaintiff; but the objection was overruled. Patterson, J., said: "The only question is upon the alleged want of consideration moving from the plaintiff. It is true that the rule of law requires such a consideration in all cases, though in an action for money had and received a direct consideration is seldom shown. But suppose that a debtor-sent money to a general agent for the creditor, would there be any doubt that, as soon as the agent received it, he would be accountable to the creditor for it, as money had and received to his use ? Would it be an answer that there was no consideration moving from the creditor to the agent ? Or is it not a consideration if the money is sent to a general agent for the creditor, and received by him, he informing the creditor of it. That is the case here. The money was sent by Wood to the defendant; he admitted holding it for the plaintiff's use, and said he would pay it him. There is a consideration moving here through the instrumentality of Wood, the original debtor, to the defendant as agent for the plaintiff." Coleridge, J.: "The facts here show that the defendant was the agent of the plaintiff; that agency supplies the consideration."
1 Bigelow v. Davis, 16 Barb. 561; Jackson v. Stevens, 108 Mass. 94 (1871), and note 3, supra. See also Colvin v. Holbrook, 2 Comst. 126; Merritt v. Johnson, 7 Johns. 472; Cobb v. Becke, 6 Q. B. 930.
§ 486. Again, in England as well as in America, there is a somewhat different class of cases, wherein a special trust is created by the agreement, from which a privity of the third person arises by implication; - as where the agreement relates to some property or thing belonging to the third person, or in respect to which he has a special interest, and the consideration grows out of the use of such property.1 Thus, where
It is doubtless correct in cases like Lilly v. Hays to say that the agency between the parties establishes the consideration; but that is a somewhat obscure statement. The meaning seems to be, that the creditor, on receiving information of the transaction of his debtor, and accepting the promise of the defendant, is influenced thereby to change his position towards the former, and conditionally to relinquish his right of action against him. By accepting the new situation he thus puts himself to an inconvenience in respect of his original claim; and this furnishes the consideration for the defendant's promise.
1 In Pigott v. Thompson 3 Bos. & Pul. 149, Lord Alvanley said: "It is not necessary to discuss whether if A. let land to B., in consideration of which the latter promises to pay the rent to C, his executors and administrators, C. may maintain an action on that promise. I have little doubt, however, that the action might be maintained, and that the consideration would be sufficient; though my brothers seem to think differently upon this point. It appears to me that C. would be only a trustee for A., who might, for some reason, be desirous that the money should be paid into the hands of C. In case of marriage, it is often necessary to make contracts in this manner, and the personal action is given to the trustee for the benefit of the feme covert." See also Mellen v. Whipple, 1 Gray, 323; Brewer v. Dyer, 7 Cush. 337. See also Jones v. Robinson, 1 Exch. 454. In this case the declaration stated that the plaintiff and A. B. carried on business in copartnership, and in consideration that the plaintiff and A. B. would sell defendant the business, and would become trustees for him in respect to all debts, etc, due to the plaintiff and A. B. in respect thereof, the defendant promised the plaintiff to pay him all the money he had advanced in respect to the copartnership, and for which it was accountable to the plaintiff. The averment was that the plaintiff and A. B. did sell the business to the defendant, and that, at the time of the promise, the plaintiff had advanced a certain sum. The breach alleged was non-payment; and it was held, on motion of arrest of judgment, that it was not necessary to join A. B. as coplaintiff, and that the declaration was good. Parke, J., said: "It is true that no stranger to the consideration can sue; but in the present case the separate interest of the plaintiff in the partnership fund is the consideration on which the promise is founded; and this case does not fall within the rule for which the defendant contends." In Marchington v. Vernon, 1 Bos. & Pul. 101, note, which was an action by the holder of a bill of exchange against the assignees premises belonging to the third person are sub-let, the undertenant agreeing to pay over the rent to the landlord without privity of the latter, it has been held that the landlord may sue the sub-tenant for the rent.1 So it was in an earlv case held, that where the defendant, being a remainder-man, promised a father who was about to fell timber for the purpose of raising a portion for his daughter, that if he would forbear to do so, the defendant would pay the daughter £1000, the daughter could maintain the action.2 But the cases of this class have been overruled in England, and denied in America; and it is now held that nearness of relationship and consequent interest in the promise are not sufficient to raise a privity of contract.3 of the drawee, on a promise made by the bankrupt to the drawee that he would honor the bill, Mr. Justice Buller said, that " independent of the rules which prevail in mercantile transactions, if one person makes a promise to another for the benefit of a third, that third person may maintain an action on it." In this case the third person had a special interest in the subject-matter of the contract. See also Carnegie v. Morrison, 2 Met. 381; Bell v. Chaplain, Hardr. 321; Bigelow v. Davis, 16 Barb. 564; Arnold v. Lyman, 17 Mass. 400; Schemerhorn v. Vanderheyden, 1 Johns. 140; Gold v. Phillips, 10 Johns. 412; Farley v. Cleveland, 4 Cow. 432; Barker v. Bucklin, 2 Denio, 55.