Kimball v. Noyes

By the Court, Paine, J. Noyes, Flertzheim and Kimball composed a firm-dealing in furniture. They were indebted to the plaintiff and others. Flertzheim and Kimball sold out their interest to Noyes, and he agreed to assume and pay certain debts of the firm, among others that of the plaintiff, and to give se [698] curity for sucb payment. He accordingly gave a bond with tbe defendant Davis as surety, conditioned for tbe payment of those debts and to save Kimball and Flertzheim harmless from all costs, damages &c. This action was brought by the plaintiff originally against Flertzheim and Kimball as well as Noyes and Davis, the complaint averring the above facts, and that the plaintiff’s debt had not been paid, and asking that Kimball and Flertzheim be compelled to assign the bond to the plaintiff, and that Davis and Noyes be adjudged to pay. Noyes and Davis answered by a general denial, and the suit was dismissed as to Flertzheim and Kimball, without objection by the other defendants so far as the record shows. The facts as found fully sustain the complaint; and although there are exceptions to the findings, yet as there is no bill of exceptions preserving the evidence, the only question here is, whether the facts found are sufficient to authorize the judgment for the plaintiff. If, instead of being under seal, the promise- of Noyes and Davis had been a simple contract, it is well settled that the plaintiff might have maintained assumpsit on it in his own name. Arnold vs. Lyman, 17 Mass., 403; Carnegie vs. Morrison, 2 Met., 401; Brewer vs. Dyer, 7 Cush., 340; Hale vs. Boardman and others, 27 Barb., 82; Canal Co. vs. Bank, 4 Denio, 98; Bohanan vs. Pope, 42 Maine, 96; Bristow vs. Lane, 21 Ill., 196. In many of these cases the rule is extended in terms only to simple contracts. In others the language is general, and would include any promise, though the cases in which it was used were upon simple contracts. But there are still other cases where it has been expressly intimated that the same rule does not prevail in respect to contracts under seal. Union India Rubber Co. vs. Tomlinson, 1 E. D. Smith, 374; Montague vs. Smith, 13 Mass., 404-5; How vs. How, 1 N. H., 51; Hinkley vs. Fowler, 15 Maine, 289. In most of these cases there is .no [699] attempt to give any reason, and in none of them is there any satisfactory reason given for a distinction between sealed and unsealed contracts in this respect. On the contrary, the reason usually given is, that the third person, for whose benefit a sealed promise is made, cannot maintain an action on it because he is not a party to the contract. But that is the same objection that has always been made in cases of simple contracts. And it appears from the opinion in Carnegie vs. Morrison, 2 Met., 404-5, that after some vacillation, the rule has become established in England, that the objection is good in either case; and it seems obvious that it is good in both if good at all. For where A promises B upon a good consideration to pay 0 a sum of money, it seems clear that it is wholly immaterial whether it has a seal or not, so far as concerns the question whether it is a promise to 0 upon which he can sue in his own name. There is no sound reasoning by which 'it can be shown that he is a party to it sufficiently to sue on it before it has a seal, but not so afterwards. If it is an unsealed promise to him before, by the same reasoning it is a sealed promise to him afterwards. It follows that as the rule is fully established in this country, that such third party may sue directly on a simple contract for his benefit, the law, to be consistent, should allow the same on a contract under seal. It has been held, that where a clause is inserted in a policy of insurance, issued to a mortgagor, that the loss, if any, should be payable to a mortgagee, the latter, might sue on the policy in his own name without any assignment. Keeler vs. Niagara Fire Insurance Co., decided by this court, 16 Wis., 523; Ripley vs. The Aslor Ins. Co., 17 How. Pr. R., 444. I can see no distinction in principle 'between those cases and the present. They were contracts under seal, and the circumstance that in them the liability ,was contingent is immaterial to this question. Still the point is not determined by the court in this case, as it is unnecessary. Eor whether or not the plaintiff could [700] maintain, an action at law on this bond in bis own name, it is certain that be was beneficially interested in it, and might obtain tbe benefit of it by a proceeding in equity. This was stated in tbe early case of Affly vs. Warde, 1 Levinz, 235, which is relied on as one of tbe cases first establishing the rule that an action at law could not be sustained. This was a suit in equity, and the complaint was dismissed as to Kimball and Klerizheim, the obligees in the bond. If that was technically improper, as the appellants contend, it furnishes no good reason for reversing the judgment against them, which is the same relief the plaintiff would have been entitled to, if, as they claim should have been done, the other defendants had been first directed to assign the bond to the plaintiff But we do not regard such a formal assignment as necessary in a court of equity, however the plaintiff’s rights upon such an instrument may be held at law. There is no validity in the objection that the other creditors whose debts were provided for by the bond, were not made parties as plaintiffs. There is nothing in the case to show that their debts had not been paid. But even if they had been proper parties, the objection, which could only have been taken by demurrer or answer, was not taken at all. See Mutual Ins. Co. vs. Benson, 5 Duer, 175. The judgment is affirmed, with costs.