Sec 784

We have already seen that privity, or reciprocal recognition, is essential to establish a contractual relation.1 Since a suit on a contract cannot be sustained unless there be a contractual relation between the parties, it follows that no one can sue on a contract to which he was not a party.2 It would, in fact, be destructive to society if strangers could intervene and undertake litigations in accordance with their own interests and tastes; and such intrusion can only be prevented by the rigid application of the rule that contracts can only be sued on by parties.1 Of course there may be some cases in which this works hardly; but the rule is so wise and so vital that even in hard cases it continues to be applied. Thus, it has been held that the managers of an association for the mutual insurance of ships could not vest in an agent the power to sue in his own name for sums payable from members for premiums.2 A written agreement, also, by a third party, to a constable, to go bail for the debt and costs of an execution in the constable's hands, must be sued out in the constable's name, and not in the name of the plaintiff in the execution.3 A deed inter partes, also, cannot operate to release a person not a party, and can only be sued on by a party.4 A composition deed, also, does not authorize any creditors to bring suit unless they are named specifically or are included in a general covenant for their benefit;5 though it would be otherwise, on the principles above stated, were the creditors suing on such contracts to prove that they did some particular acts - e. g., executed releases - in consideration of the assignment.6 - To the same effect is a ruling in 1880 in the English court of appeals,7 where Jessel, M. R., said: "A mere agreement between A. and B. that B. shall pay C. (an agreement to which C. is not a party either directly or indirectly), will not prevent A. and B. from coming to an agreement the next day releasing the old one." And in a subsequent case,8 it was held, as we have seen, that a provision in articles of association that A. shall be solicitor of the company on certain terms, gives him no right of action against the company.1 It is true that at one time it was held in England that on an agreement between A. and B. for the benefit of C, a child of B., suit could be brought by C.2 This, however, is no longer law in England,3 where it is now firmly settled that contracts can be sued on only by parties.4 In Only party to contract can sue on it.

1 Supra, sec 184, 506. 2 Ch. on PL 16th Am. ed. 3; Twed-dle V. Atkinson, 1 B. & S. 393; Price V. -Easton, 1 B. & Ad. 433. See Anderson V. Longden, 1 Wheat. 85; Shear V. Mallory, 13 Johns. 497.

1 The principle has been pushed to its extreme limit in cases in which it is held that a creditor cannot authorize a third person to sue in his own name on a debt due the creditor. Hybart V. Parker, 4 C. B. N. S. 209.

2 Gray V. Pearson, L. R. 5 C. P. 568; Evans V. Hooper, L. R. 1 Q. B. D. 45.

3 Cummings V. Klapp, 5 W. & S. 511.

4 Storer V. Gordon, 3 M. & S. 308.

5 Leake, 2d ed. 445; Chesterfield V. Hawkins, 3 H. & C. 677; Gurrin V. Kopera, 3 H. & C. 694; Gresty V. Gibson, 4 H. & C. 28; Reeves V. Watts, L. R. 1 Q. B. 412.

6 See supra, sec 24, 527. •.

7 Empress Engineering Co. in re, L. R. 16 Ch. 125.

8 Eley V. Ass. Co., L. R. 1 Ex. D. 88.

1 In a much earlier case, Pigott V.

Thompson, 3 B. & P. 147, it was held that where a contract was made with certain local commissioners to pay rent "to the treasurer of the commissioners," the commissioners must bring suit, not the treasurer.

2 Dutton V. Pool, 1 Vent. 318. See Felton V. Dickinson, 10 Mass. 287; Schermerhoyn V. Vanderheyden, 1 Johns. 139; see infra, sec 790.

3 Tweddle V. Atkinson, ut supra.

4 Mr. Dicey (Parties, Am. ed. 1879, 81) states the rule as follows: "The person to sue for the breach of a simple contract must be the person from whom the consideration for the promise moves," citing Smart V. Chell, 7 Dowl. 785. See Anson, 900 et seq. As to the importance of care in this respect, see Chitty on PL 16th Am. ed. 1879, 1 et seq. - So far as concerns merely technical variance, difficulties are now obviated by statutes in force in England and in this country permitting amendments. See infra, sec 822.

As adhering to the English rule, and conforming to the position taken in the text, see Segars V. Segars, 71 Me. 530; Butterfield V. Hartshorn, 7 N. H. 345; Warren V. Batchelder, 15 N. H. 129; Lapham V. Green, 9 Vt. 407; Hall V.

Huntson, 17 Vt. 244; Mellen V. Whipple, 1 Gray, 321; Field V. Crawford, 6 Gray, 116; Exchange Bk. V. Rice, 107 Mass. 39; Pettee V. Reppard, 120 Mass. 522; Cottage St. Ch. V. Kendall, 121 Mass. 528 (discussed supra, sec 528); Reed V. Bank, 127 Mass. 295; Meserve V. Bacon, 125 Mass. 499; Moore V. Moore, 127 Mass. 22; Butler V. Frank, la Nat. Bk. V. Grand Lodge, 98 U. S. 123, ut supra, Strong, J., said: "The resolution of the Grand Lodge was but a proposition made to the Masonic Hall Association, and, when accepted, the resolution and acceptance constituted at most only an executory contract inter partes. It was a contract made for the benefit of the association and of the grandlodge - made that the latter might acquire the ownership of stock of the former, and that the former might obtain relief from its liabilities. The holders of the bonds were not parties to it, and there was no privity between them and the lodge. They may have had an indirect interest in the performance of the undertakings of the parties, as they would have in an agreement by equity as well as in law the right to sue is restricted to those who are parties to the contract. Thus, a bill for specific performance can only be brought by those who are parties to the contract, and "persons strangers, to the contract, and therefore neither entitled to the right nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to rewhich the lodge should undertake to lend money to the association, on contract to buy its stock to enable it to pay its debts; but that is a very different thing from the privity necessary to enable them to enforce the contract by suits in their own names. We do not propose to enter at large upon a consideration of the inquiry how far privity of contract between a plaintiff and defendant is necessary to the maintenance of an action of assumpsit. The subject has been much debated, and the decisions are not at all reconcilable. No doubt the general rule is that such a privity must exist. But there are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor's hands or under his control which in equity belong to a third person. In such case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets than on the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or deliver some valuable thing to a third. But where a debt already exists from one person to another, a promise by a third person to pay such debt being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity; and if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot sue. His case is not an exception from the general rule that privity of contract is required." And see Johnston V. U. S., 13 Ct. of Cl. 217.