Sec 942

A payment by a third party on behalf of a debtor, though without authority at the time, discharges the debt when afterward adopted by the debtor, but, by the old authorities, not till then.1 But before ratification by the debtor the payment made by a third party in the debtor's behalf may be recalled, and the money received back, without the debtor's consent.2 In England the prevalent view continues to be that a payment by a stranger of a debt without the privity of the debtor does not discharge the debt;3 though this has been questioned, and it has been argued that when a debt is paid by a stranger the creditor has no further claim on it. - 4" In the case of bills of exchange a payment made by the drawer or endorser to the holder is taken to operate merely in discharge of his own distinct liability, and not in discharge of the acceptor; the holder may afterwards claim the full amount against the acceptor, and so far as he has been paid will claim as trustee for the drawer or endorser who has paid.5 But if the bill has been accepted for the accommodation of the drawer, the payment by him will discharge the bill absolutely, because the drawer is the party ultimately liable."6 - In the Roman law payment by any person whatsoever extinguished the debt. "Nec tamen interest quis solvat utrum ipse qui debet, analius pro eo; liberatur enim et alio solvente, sive sciente, sive ignorante debitore vel invito solutio fiat."1 The Roman law, however, on the whole question of unauthorized agency, took a position widely different from our own; the Roman law in many cases supporting such agency, our law in all cases discountenancing it.2 The reasoning already expressed in reference to the policy of permitting strangers to meddle in contracts to which they are not parties, applies to the question of permitting strangers to extinguish debts they do not owe. If a stranger can do this, he may acquire a power over me I may not desire to concede. There may be cases in which it may be to my advantage to keep a debt alive, as where collateral questions of domicil or taxation may be involved, or where, recognizing the moral obligation of a debt, though not technically due, I may not choose to have a new creditor whom I do not like imposed on me in the place of one to whom I am used. Even supposing paying the debt may be a great benefit to me, no one should be permitted to burden me with a great benefit without my consent. To many persons the acceptance of such bounties would be intolerable; and the fact that such bounties are received may in other cases work a serious injury to the party receiving them. Yet if the position here contested be sound, any stranger would have a right to intervene and extinguish an indebtedness without the debtor's consent; and it would follow from this that such an extinguishment would be worked by a tender by a stranger as well as by a payment. Revocable payments, also, cannot bind; but all unratified payments by third parties are revocable. The better view is that a payment only concludes when adopted by the debtor; though on this question the same division of opinion is likely to exist in our courts as exists in reference to the right of third parties to sue on contracts.3

Payment by a third party in behalf of debtor may discharge debt.

1 Leake, 2d ed. 913; Benj. on Sales, 3d Am. ed. sec 741, 756; Read V. Gold-ring, 2 M. & S. 86; Belshaw V. Bush, 11 C. B. 191; Simpson V. Eggington, 10 Ex. 845; Walter V. James, L. R. 6 Ex. 127; see infra, sec 1008.

2 Walter V. James, L. R. 6 Ex. 127; see comments in Benj. on Sales, sec 756.

3 James V. Isaacs, 12 C. B. 791; Kemp V. Balls, 10 Ex. 607; Lucas V. Wilkinson, 1 H. & N. 420. That such has been held to be the rule in New York, see infra, sec 1008.

4 Willes, J., in Cook V. Lister, 3 C.

B. N. S. 594; per cur. in Thurman V. Wild, 11 A. & E. 461, cited in Leake, 2d ed. 912; and see Jones V. Broad-hurst, 9 M. & Sc. 173; Simpson V. Eggington, 10 Exch. 845. In this country the rule has been repudiated in Ohio and Iowa, see infra, sec 1008.

5 Jones V. Broadhurst, 9 C. B. 173; Williams V. James, 15 Q. B. 498; Randall V. Moon, 12 C. B. 261; Thornton V. Maynard, L. R. 10 C. P. 695.

6 Leake, 2d ed. 913; Lazarus V. Cowie, 3 Q. B. 459; Cook V. Lister, 13.

C. B. N. S. 543.