Sec 809

Not only is the asseut to a contract of the party charged necessary to bind him, but this assent must be coincident with the formation of the contract. It is true that a stranger may be liable in tort for wrongfully and maliciously procuring the breach of a contract,1 but this is a liability not on a contract, but outside of the contract.2 As a rule, a party, to be made liable on a debt, must assent to such liability.3 "A. cannot by paying X.'s debts unasked," says Sir W. Anson,4" make X. his debtor," and he adopts, as settled by high authority,5 the rule that a man cannot, of his own will, pay another man's debt without his consent, and thereby convert himself into a creditor. "A voluntary payment made by one of a debt due by another, without his request, creates no assumpsit or liability on the part of the latter to the former."6 - In this relation may be considered the cases heretofore noticed7 where vendees of mortgaged property agree to pay the mortgage debt. "If B. as grantee accepts a deed from A. containing a recital that the property was conveyed subject to a deed of trust made to secure a debt to C, and that B. assumed or agreed to pay the same, the effect of such a recital is to make the debt due to C. the debt of B., and to render B. personally liable therefor; by the acceptance of the deed a duty is imposed upon B. and the law implies a promise that he will perform it, on which in case of failure assumpsit will lie."8

Assent of party charged necessary to bind him.

116 Mass. 471. As to privity of contract, see supra, sec 506.

1 Wh. on Neg. sec 441; Lampleigh V.

Brathwait, 1 Smith, L. C. 7th Am. ed. 280; Lunley V. Gye, 2 E. & B. 216; Young V. Brander, 8 East, 12; Bowen V. Hall, L. R. 6 Q. B. D. 333.

2 Wh. on Neg. sec 441; Pollock, 3d ed. Mt.

3 Supra, sec 1 et seq., 506, 784; Strawn V. O'Hara, 86 Ill. 53.

4 Cont. 197.

5 Durnford V. Messeter, 5 M. & S. 446.

6 Hearn V. Cullen, 54 Md. 543; Bar-tol, C. J., citing Mayer V. Hughes, 1 G. & J. 480. As to assignees, see infra, sec 836.

7 Supra, sec 786 a.

8 Norton, J., Wiggins Ferry Co. V.

R. R., 73 Mo. 403; citing Heim V. Vogel, 69 Mo. 529; Pitcher V. Swift, 21 Vt. 298, citing Aikins V. R. R., 26 Barb. 289; Attix V. Pelan, 5 Clark, Iowa, 336; Barton V. Wills, 30 Miss. 689; see to same effect, 1 Jones on Mortgages, sec 756; Conover V. Brown, 29 N. J. Eq. 510.

Sec 810

On the principle expressio unius est exclusio alterius the enumeration of specific parties in a contract excludes the supposition of others,1 unless one of the named parties be shown to have acted for an undisclosed principal.2 "Where there is such a deed as is technically called a deed inter partes, that is, a deed importing to be between the persons who are named in it, as executing the same, and not, as some deeds are, general to ' all people,' the immediate operation of the deed is to be confined to those persons who are parties to it; no stranger can take, except by way of remainder, nor can any stranger sue upon any of the covenants it contains."3 To admit evidence to introduce a new party into a contract, would be to vary the contract essentially; and such evidence, unless for the purpose of explaining a latent ambiguity, or of disclosing a real principal, is inadmissible.4 Parol evidence, however, is admissible, as is elsewhere seen more fully, to bring out the real name of a party,5 and to remove latent ambiguity as to the designation of parties.6