§ 573. It is now well settled as a general rule, although the early cases are quite contradictory on the point, that in cases of simple contract, if one person make a promise to another for the benefit of a third, it is not binding in favor of the latter, without a promise by him to the plaintiff, except in peculiar cir-
Richards, 14 Wend. 116; Harper v. Graham, 20 Ohio, 105; Lee v. Oppen-heimer, 32 Me. 253; Sibree v. Tripp, 15 M. & W. 23. See post, § 1340 -1353.
1 Wilkinson v. Byers, 1 Ad. & El. 106. See also Wilbur v. Crane, 13 Pick 284; Hey v. Moorhouse, 6 Bing. N. C. 52.
2 Burton v. Great Northern Railway Co., 9 Ex. 507.
3 lb.; Great Northern Railway Co. v. Witham, Law R. 9 C. P. 16; 43 Law J. C. P. 1 (1873).
4 A consideration moving to third persons, of which the defendant gets the benefit, as by being admitted into partnership with them, will often support a promise by the defendant. Philpot v. Gruninger, 14 Wall. 570 (1870).
cumstances, as where money or property is placed in the hands of the defendant which in equity and good conscience belongs to the plaintiff.1 The tendency is to restrict the rule to the doctrine of privity.2 It is not indeed required that the plaintiff should be privy to the consideration; but if he be a stranger to the consideration, there must generally be a promise to him from the defendant to enable him to maintain his action. Where, therefore, the declaration stated, that A. owed the plaintiff £13, and that in consideration thereof, and that A., at the defendant's request, had promised the defendant to work for him at certain wages, and also, in consideration that A. would leave the amount, which might be earned by him, in the defendant's hands, he (the defendant) undertook and promised to pay the plaintiff the said sum of £13, it was held, although it appeared that A. had performed his part of the agreement, that the plaintiff could not recover, because he was clearly a mere stranger to the consideration, no promise having been made to him.8 But on the other hand,
1 Exchange Bank v. Rice, 107 Mass. 37 (1871). See ante § 552, and note.
2 The rule has always been strict in the case of sealed instruments. Southampton v. Brown, 6 B. & C. 718; Sanders v. Filley, 12 Pick. 554; Johnson v. Foster, 12 Met. 167; Hinkley v. Fowler, 15 Me. 285.
3 In Crow v. Rogers, 1 Str. 592, the court, without much debate, held that the plaintiff was a stranger to the consideration, and gave judgment for the defendant. This case was affirmed in Starkey v. Mill, Style, 296; and the same doctrine was held in Bourn v. Mason, 2 Keble, 457, 527; s. p. stated in De la Bar v. Gold, 1 Keble, 44, and Crow v. Rogers was again affirmed in Price v. Easton, 4 B. & Ad. 434. In Dutton v. Pool, 1 Vent. 318, 322; s. c. 2 Lev. 210, and T. Raym. 302, the doctrine was held, that if one person make a promise to another for the benefit of a third, the latter may maintain an action upon it, although the consideration do not move from him. This case is cited and approved by Lord Mansfield, in Martyn v. Hind, 2 Cowp. 443; 1 Doug. 146, who said that it was a matter of surprise how a doubt could have arisen. But these early cases have been overruled. Tweddle v. Atkinson, 1 B. & S. 393; Leake, Contracts, 222. See also Rippon v. Norton, Yelv. 1; Whorewood v. Shaw, Yelv. 25, and Metcalf 's note (1); Carnegie v. Waugh, 2 Dowl. & Ryl. 277; Bafeild v. Collard, Aleyn, 1; Bell v. Chaplain, Hardr. 321; Osborne v. Rogers, 1 Wms. Saund. 264; Curtis v. Collingwood, 1 Vent. 297; Disborneu. Denabie, 1 Roll. Abr. 31, pi. 5; Company of Felt Makers v. Davis, 1 Bos. & Pul. 102. The distinction where the plaintiffs were creditors, and the defendants were debtors of T., and by consent of all parties an arrangement was made that the defendant should pay to the plaintiffs the debts due from them to T., it was held, that the agreement was for a sufficient consideration.1 So, also, where the declaration stated that the defendants being in possession of certain mortgage deeds, of which A. was desirous to obtain an assignment by the payment of £500, the plaintiff consented, at A.'s request, to accept bills for that amount, drawn by A., upon A.'s procuring the defendants to deliver the mortgage deed to the plaintiff as a security; and that the defendants, in consideration of the acceptance of the bills by the plaintiff, undertook to deliver the deeds to him upon his paying the amount of the bill; it was held, that this was a sufficient consideration to support the action by the plaintiff, it appearing that all the parties were together when the agreement was made.2 Indeed, a privity of contract will always be implied, where the promise or agreement is made in the presence of the third person, with his assent.3 But unless tho promise is made to the plaintiff, or the consideration moves from him, he cannot generally sue on it.4
§ 574. According to the rule as laid down by the English courts, a privity of contract sufficient to enable the third perm the text is fully supported in Williams v. Everett, 14 East, 582; Pigott v. Thompson, 3 Bos. & Pul. 149; Tipper v. Bicknell, 3 Bing. N. C. 710; Webb v. Rhodes, 3 Bing. N. C. 734; Wilson v. Coupland, 5 B. & Al. 228; Lilly v. Hays, 5 Ad. & El. 550; Jones v. Robinson, 1 Exch. 456; Thomas v. Thomas, 2 Q. B. 857; Sargent v. Morris, 3 B. & Al. 281; Rowe v. Newbury, W. Jones, 415; Hammond on Parties, 79; 1 Chitty, Plead. 5. And see Watson v. Swann, 11 C. B. (n. s.) 756; Page v. Becker, 31 Mo. 446; Fithian v. Monks, 43 Mo. 503; Chesterfield, etc., Co. v. Hawkins, 3 H. & C. 677.
1 Wilson v. Coupland, 5 B. & Al. 228.
2 Tipper v. Bicknell, 3 Bing. N. C. 710. See M'Coubray v. Thomson, Irish R. 2 C. L. 228 (1868).
3 Tipper v. Bicknell, 3 Bing. N". C. 710; Webb v. Rhodes, 3 Bing. N. C. 734; Wilson v. Coupland, 5 B. & Al. 228; Disborne v. Denabie, 1 Roll. Abr. 31, pi. 5; Starkley v. Mylne, ib. 32, pi. 13.
4 M'Coubray v. Thomson, Irish R. 2 C. L. 226 (1868); Exchange Bank v. Rice, 107 Mass. 37 (1871). See ante, § 485, 552.
son to sue directly on the contract, will only exist where a direct promise passes between them, or at least a recognition is made as between them of the promise.1 It has, indeed, been asserted, and doubtless correctly, that in the action for money had and received, a direct promise to the plaintiff need always not be shown; and that if a debtor should send money to a third person, the general agent of his creditor, such third person would be- accountable to the creditor for it, as money had and received to his use.2 And in the case referred to it was held that the defendant, by receiving money from another for the plaintiff and promising so to pay it, and authorizing his promise to be communicated to the plaintiff, had made himself the plaintiff's agent in the matter; and that thus the consideration of agency had arisen, which was sufficient to support the promise.8
§ 575. It was formerly supposed that the near relationship of parent and child would be sufficient to enable the latter to sue upon a promise made to the former for the benefit of the child, without any actual promise to or consideration from the latter.4 But the doctrine is not now received with favor, and it was recently held in England, that where two fathers mutually agreed in writing to each pay the son of one who had married the daughter of the other the sum of £200, such son could not recover of his wife's father the .£200, notwithstanding his near relationship to the party from whom the consideration moved.1
1 Price v. Easton, 4 B. & Ad. 434; Williams v. Everett, 14 East, 582; Barlow v. Browne, 16 M. &. W. 126; Cobb v. Becke, 6 Q. B. 930; Gibson v. Minet, Ry. & Mood. 68; Wedlake v. Hurley, 1 Cr. &. J. 83; Baron v. Husband, 4 B. & Ad. 611. See Bigelow v. Davis, 16 Barb. 561; Jones v. Robinson, 1 Exch. 454; Thomas v. Thomas, 2 Q. B. 851; Gerhard v. Bates, 2 El. &. B. 476; 20 Eng. Law & Eq. 133; Davis t>. Calloway, 30 Ind. 112 (1868). This subject was thoroughly considered by Mr. Justice Gray in Exchange Bank v. Rice, 107 Mass. 37; and certain unguarded expressions in some of the earlier cases were overruled.
2 Lilly v. Hays, 5 Ad. & El. 550; s. c. 1 Nev. & Per. 26.
3 This doubtless means that the defendant, by accepting the money and promising the plaintiff to pay it to him, thereby induced the plaintiff to change his position towards his original debtor, and to relinquish or relax his effort against him, which being an inconvenience raised a consideration. See ante, § 485, and note.
4 Bourne v. Mason, 1 Ventr. 6; Dutton v. Pool, lb. 318; Felton v. Dickinson, 10 Mass. 287.