Hiner v. Washita Valley Bank

Opinion by COLLIER, C. (after stating the facts as above). Applying the well-established - rule as - to the facts admitted upon a demurrer to the-evidence and the inferences drawn therefrom, we are unable to- ■ see .any' theory upon which plaintiff can rest a successful issue in this casé. There is no privity shown .by the evidence between the bank and plaintiff that rendered the bank in any way liable to plaintiff. The many authorities cited by plaintiff, while correctly stating the law, are in no wise applicable to the facts in this case. ' Certainly there is no evidence that the bank agreed to pay the check of Luce; and to argue that the bank became liable to pay the debt, without such agreement being in writing, of which there is no evidence, would be to ask that the statute of frauds of this state -be abrogated. We cannot agree' with plaintiff that section 895, Rev. Laws 1910, providing that “a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind,” covers this case, because it cannot even be imagined from the evidence *609 that the contract was made by Luce with the bank expressly for the benefit of plaintiff. Finding no error in the record, this cause should be affirmed. By the Court: It is so ordered.