Fahnestock v. Schoyer

Per Curiam: No contract, which is not negotiable by the statute of Anne, or the common law, can be sued in the name of a transferree: such is an admitted principle of the common law. What peculiar feature is there in this case to distinguish it? It is admitted, that the order is not negotiable as a bill of exchange; but it was accepted before it was passed to the holder, who may have taken it on the credit of the acceptance. There was, however, no privity of contract between him and the defendant; and how can he maintain an action of assumpsit without it? The acceptance was a special agreement in the nature of a guaranty, that the order would be paid; and such a guaranty was held in M’Doal v. Yeomans, 8 Watts 361, to be untransferable. The only case founded on an apparent exception to this principle of privity, is Lawrason v. Mason, 3 Cranch 492, in which an action was maintained on a general guaranty by a party who had subsequently given credit on the faith of it. That, however, was an anomalous case in which the guaranty was in the. nature of a letter of credit; and, as the plaintiff could not have sued at all, if not in his own name, the action was sustained on a principle of necessity. Here the undertaking is special, and made. directly, with the drawer of the order for the benefit of any one who would advance his money on it; and the action should consequently have been brought in the drawer’s name for the holder’s use. Had previous acceptance of an inland bill entitled the holder to an action on it at the common law, there would have been no necessity for the statute; and there can be no difference in principle betwixt a draft for the payment of money, and an order for the delivery of goods. The consequence is, not only that the present action is unsustainable, but that the plaintiff can maintain no other which will exclude evidence of set-off, want of consideration, oran equity, betwixt the legal parties. Judgment reversed.