Sec 786

Many of the cases, however, cited to show that a stranger can maintain an action on a contract, are explicable person to another, from the performance of which a third would derive a benefit, gives a right of action to such third party, he being neither privy to the contract nor the consideration. To entitle him to an action the contract must have been made for his benefit. He must be the person intended to be benefited, etc." In Vrooman V. Turner, 69 N. Y. 280, it was said by the court of appeals that, "to give a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally." See criticism in Am. Law ReV. Ap. 1881, 243; and see also Campbell V. Smith, 8 Hun, 6; 71 N. Y. 26.

"When two parties for a consideration sufficient as between themselves covenant to do some act, which, if done, would incidentally result to the benefit of a mere stranger, that stranger has not a right to enforce the covenant, though one of the contracting parties might enforce it against the other." Danforth, J., Lake Ontario Shore R. R. V. Curtiss, 80 N. Y. 223. And a person for whose benefit a promise is made cannot sue on a contract which cannot be enforoed between the original parties.

" I know of no authority to support the proposition that a party not a party to the promise, but for whose benefit the promise is made, can maintain an action to enforce the promise, where the promise is void as between the promisor and promisee, for fraud, or want of consideration, or failure of consideration." Andrews, J., Dunning V. Leavitt, 85 N. Y. 35.

"If one person make a promise to another for the benefit of a third person, such third person may maintain an action even at law upon it. Joslin V. Car Co., 7 Vroom, 141. And, if a suit be brought in equity, the promisee is not a necessary party to it. Pruder V. Williams, 11 C. E. Green, 210;" Runyon, Ch., Cubberly V. Cubberly, 33 N. J. Eq. 86; S. P., 1 Pars. Cont. 389; Barker V. Bucklin, 2 Denio, 45; Lawrence V. Fox, 20 N. Y. 268; see Marchington V. Vernon, 1 B. & P. 101, note c.

In Pennsylvania it is said to be " a rudimental principle that a party may sue on a promise made on sufficient consideration for his use and benefit, though it be made to another and not to himself." Paxson, J., Merriman V. Moore, 90 Penn. St. 81, citing Town-send V. Long, 77 Penn. St. 143; Justice V. Tallman, 86 Penn. St. (5 Norris) 147. But that a stranger is not liable on a contract, see Biery V. Ziegler, 93 Penn. St. 367. In Robertson V. Reed, 47 Penn. St. 115, where the balance due a contractor was at his request placed to the credit of a third person, it was held that the latter could not maintain an action in his own name for the amount credited. And generally a promise by a debtor to his creditor to pay his debt to a third party will not sustain a suit by such third party against the debtor. Bly-mire V. Boistle, 6 Watts, 182; Morrison V. Beckey, 6 Watts, 849; Torrens V. Campbell, 74 Penn. St. 470.

In Indiana " it has been many times decided that a promise made by one to on other grounds. We may take in illustration the line of cases where it is held that where by a contract between A. and B., B. receives money or goods in trust for C, C. can sue in his own name for the deposit.1 When these cases, however, are scrutinized, it will be found that when B. did not act as the agent of C. (a condition to be presently more fully considered), there was a bargain more or less direct between A. and C.2 The recognition, on such a state of facts, of C. as creditor of B. can be explained on the principles of novation, elsewhere discussed.3 If a creditor accepts a new party as a debtor in the place of an old debtor, the exchange of security may be regarded as a sufficient consideration for the agreement of the new debtor to pay the debt.1 - Or it may be said that in some of the cases B. acts throughout as C.'s agent, and that in such cases it is proper that the suit should be brought in C.'s name.2 Other cases may be explained on the ground of a fiduciary contractual relation between the plaintiff and the defendant. I receive money in trust for C, and the very moment C. says to me, "I hold you as my trustee, and will let the money remain in your hands until I call for it," this establishes a contractual relation, in which if my temporary use of the money is not a sufficient consideration, the confidence bestowed on me is. And this explanation is strengthened by the fact that when we get out of the line of trusts, of novations, and of negligence, the cases are rare in which the right of a party not a stranger to the contract to sue is recognized. Thus, in Illinois, where the laxer view is ostensibly held, it is ruled that only a party can sue on a forfeiture;3 and in Iowa, where the laxer view is also held, it is ruled that the owner of property destroyed by fire cannot maintain an action against a water company which has contracted to supply with water the city in which the property at the time of its destruction is situated.4 "One whom the law regards as a stranger to the contract cannot maintain an action thereon. The rule is founded on the plainest reasons. The contracting parties control all interests, and are entitled to all rights secured by the contract. If mere strangers may enforce the contract by action, on the ground of benefits flowing therefrom to them, there would be no certain limit to the number and character of actions which would be brought thereon."5 - Another independent basis on which some of the cases before us may be placed, without invading the principle that none but parties to a contract can sue on it, is that of negligence. The rule is, sic utere tuo ut non alienum laedas; and if this rule is violated, it is no defence that the offending party did the wrongful act under the stress of a contract with a third party.1 On this ground we may explain a remarkable case in New York, in 1881,2 where it was held that where a contract was entered into between the state authorities of New York and certain publishers, to the effect that such publishers, in consideration of having given to them the publication of the reports, should be required to furnish other publishers on certain terms, an action would lie against such publishers by parties to whom they refused to sell the reports on specified terms. "The rule," said Miller, J., "is well settled by the decisions of the courts of this state, that an agreement made for a valid con-sideration by one party with another to pay money to a third, can be enforced by such third person in his own name..Contractors with the state, who assume, for a consideration received from the sovereign power, by covenant, express or implied, to do certain things, are liable in case of neglect to perform such covenant, to a private action at the suit of the party injured by such neglect, and such contract enures to the benefit of the individual who is interested in its performance."3 Now this is unquestionable law; but it does not go to sustain the position that a person not a party to a contract can sue on it contractually. All that the argument of Mr. Justice Miller goes to show is that a suit for negligence lies by a party Cases explicable on ground of novation, trust, or negligence.

"By repeated decisions of this court, the persons for whose benefit the promise is made may maintain actions in their own names to enforce such promise." Taylor, J., Kollock V. Parcher, 52 Wis. 400, citing Putney V. Farnham, 27 Wis. 187; Bassett V. Hughes, 43 Wis. 319.

"It is well established in this state that a party for whose benefit a stipulation in a simple contract is made may maintain a suit on such stipulation in his own name." Hough, J., Fitzgerald V. Barker, 70 Mo. 687. To same effect see Beardslee V. Morgner, 4 Mo. Ap. 139; Raum V. Kaltwasser, 4 Mo. Ap. 573.

"There is a conflict of the authorities in this country upon the subject, and the right was not recognized in the earlier decisions of this court; but it is now settled in this state that a third person may maintain an action in his own name upon a contract, supported by a consideration, made in his favor, though not made with him. Smith V. Lewis, 3 B. Monr. 229; Lucas V. Chamberlain, 8 ib. 276; Allen V. Thomas, 3 Met. (Ky.) 198; Story on Bailments, sec 103; 1 Chitty on Plead. 4. And he may sue upon such contract without a consideration passing from him to the promisor." Lewis, C. J., Moody V. Wiley, Sup. Ct. Ky. 1881.

1 Warren V. Batchelder, 16 N. H. 580; Perry V. Swazey, 12 Cush. 36; Mellen V. Whipple, 1 Gray, 319; Crocker V. Higgins, 7 Conn. 342; Delaware Canal Co. V. Bank, 4 Denio, 97; Barker V. Bradley, 82 N. Y. 316; Beers V. Robinson, 9 Barr, 229; Justice V.

Tallman, 86 Penn. St. 149; Merriman V. Moore, 90 Penn. St. 80; Beardslee V. Morgner, 4 Mo. Ap. 139; Barbaro V. Occidental Grove, 4 Mo. Ap. 429.

2 Dingeldein V. R. R., 37 N. Y. 575; Johnson V. Knapp, 36 Iowa, 616; Bees-ley V. Webster, 64 Ill. 488; Snell V. Ives, 85 Ill. 279; McDowell V. Laer, 35 Wis. 171; and cases cited Wald's Pollock, 199-200.

3 Infra, sec 852 et seq.

1 See supra, sec 505; infra, sec 882 et seq. Some cases, however, cannot be thus explained. Thus, in an Indiana case, in 1880, the maker of a note sold certain real estate in consideration of the purchaser's agreement to pay all his, the vendor's, indebtedness. It was held that the payee might, without any privity on his own part, sue the purchaser on this agreement. Carter V. Zenblin, 68 Ind. 436; see Fisher V. Wilmoth, 68 Ind. 449;. and see Johnson V. Knapp, 36 Ind. 616. Cf. article in Central Law Journal, Aug. 27, 1880.

2 See infra, sec 794.

3 Neimeyer V. Knight, 98 Ill. 222.

4 Davis V. Water Works Co., 54 Iowa, 61, citing Atkinson V. Water Works, L. R. 2 Ex. D. 441; Nickerson V. Hydraulic Co., 46 Conn. 24.

5 Beck, J., Davis V. Water Works, 54 lowa, 61; Wh. on Neg. sec 438-9-40.

It would be otherwise in an action on the tort. Infra, sec 812. - The distinction in the text will sustain the ruling that a policy of insurance, by which certain property of A. is insured, for the benefit of B., B. being the mortgagee of the property, enables B. to sue as plaintiff to recover on the policy. May on Insurance, sec 447; Barrett V. Ins, Co., 7 Cush. 175. See supra, sec 24; infra, sec 800-1.

See infra, sec 812, 1043 et seq.; Wh. on Neg. sec 435, 780 et seg.

2 Little V. Banks, 85 N. Y. 258.

3 To this are cited Weet V. Vil. of Brockport, 16 N. Y. 161; Robinson V. Chamberlain, 34 N. Y. 389; Fulton Ins. Co. V. Baldwin, 37 N. Y. 648; Johnson V. Belden, 47 N. Y. 130; Brooklyn V. R. R., 47 N. Y. 476; Mc Mahon V. R. R., 75 N. Y. 231; Conroy V. Gale, 5 Lans. 344; all of these being suits for negligence. To this effect see Schlossmann, Vertrag, 287.

injured irrespective of contractual relations, against the party inflicting the injury. Of the cases cited by him not one was on a contract; all are for negligence.