McDowell v. Laev

Dixoisr, C. J. It is well settled in this state, that when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement. Cotterill v. Stevens, 10 Wis., 422; Cook v. Barrett, 15 id., 596; Kimball v. Noyes, 17 id., 695; McClellan v. Sanford., 26 id., 595; Putney v. Farnham, 27 id., 187. The question whether this principle extends beyond mere simple contracts, or is applicable to contracts under seal, is in - volved in more doubt, and is one upon which the courts seem not to be agreed. Whilst it has sometimes been decided that the principle does not so extend, it may also be true that the opposite has never been directly adjudicated, though opinions to that effect have been expressed. Such was the opinion expressed by Mr. Justice PAINE in Kimball v. Noyes, supra, which seems to have been sustained by the case of Keeler v. Insurance Co., 16 Wis., 523. The reasoning of Mr. 'Justice PAINE is very olear and satisfactory, and we feel little hesitation in adopting his views as correct in the law. Certainly upon the doctrine held in Carnegie v. Morrison, 2 Met, 381, 396, and in Brewer v. Dyer, 7 Cush., 337, 840, that the law, operating upon the act 'of the parties, creates the duty, establishes the privity, and implies the promise and obligation on which the action is founded, there can be no good reason assigned for withholding contracts under seal from the operation of the principle. We accordingly hold that there is no objection to this action being maintained by the plaintiff against the defendant, although the promise or agreement entered into by the defendant with Hall [176] for the benefit of the plaintiff was in the form of a covenant or contained in an instrument under seal. The next question to be considered is, whether the assignment of the logs by Hall to the defendant was executed or ex-ecutory, — whether it was a present transfer of the property to the defendant, so as to vest the title and right of possession immediately in him by the terms of the instrument itself, or merely an agreement to transfer it in the future. If the former was the intention of the parties, and such be the true construction of the contract, then no question as to any condition precedent to be performed by Hall, or of the performance by him of any concurrent act or acts, arises in determining the liability of the defendant upon the contract. If the title to the property passed at once to the defendant on execution of the contract, then the consideration for his covenants moved at that time, and he was henceforth liable upon and must perform thém, unless he could show some breach or failure on the part of Hall which would operate to excuse. Ho question of the delivery of the logs by Hall to the defendant, as a condition precedent to the liability of the defendant to pay for them according to the terms of the agreement, could come up, for the reason that the presumption or the fact, as ascertained from the agreement itself, is, that the possession passed by the agreement or concurrently with the execution of it, and as a necessary and component part of the completed act of sale of which the agreement is the evidence. In such case, if the vendor, Hall, wrongfully regained or took and withheld the possession of the logs to the damage of the defendant, or if the title failed or there was otherwise any violation of the express or implied covenants on the part of the vendor by which the defendant was injured, or if the quantity of the logs proved to be less than was estimated or believed by the parties at the time of sale, and less than enough to meet the fixed sums agreed to be paid, or if the defendant was dispossessed or interrupted in the manufacture of the logs into lumber by any of the creditors of [177] Hall, these would be matters of defense to be stated in tbe answer, and not things in the nature of conditions precedent, to be set forth and performance averred or violations negatived in the complaint. The language of the agreement was, that Hall, the party of the first part named in it, u agrees to assign and set over unto the said second party all white pine logs and all hemlock logs now lying and situate near or about what is known as 1 Hall’s Portable Mill,’ and owned by him, the said first party, and also agrees to turn over to said second party and lease to him said portable mill above mentioned, and all materials,” etc. An examination of the terms of the instrument and of the various provisions contained in it, regard being at the same time had to the subject matter of it, satisfies us that it was an assignment and lease inprcesenti which was intended, and that such was its effect. Such appears to have been the intent of the parties to be gathered from the whole instrument, and especially the stipulations in it respecting the payment of the consideration by the defendant. The payment of the employees of Hall about the mill, together with $360 to the present plaintiff (heretofore paid), was to be a present one. The other sums were to be paid within fixed times after the date, and not from the date of any future assignment and lease. No clause in the agreement tends to sustain the opposite conclusion, unless it be that fixing the price of the logs per thousand feét, “ as scaled.” It is urged that no title was to pass until the scaling took place. No provision was made in the contract as to the time, place or manner of scaling, or the person or persons by whom it was to be done. We are not informed whether the logs were to be scaled before or at the time of sawing. Perhaps it was impracticable or impossible to scale them before they were sawed, or at the time the contract was made. At all events, the contract is silent upon this subject, and the presumption must be that tbe parties had some verbal or other understanding or arrangement respecting the [178] scaling after the logs came into the possession of the defendant. This is not a circumstance which can change the construction that the instrument must otherwise receive. Cases in which terms like those of the instrument before us, “agrees to assign and turn over,” although in strict grammatical sense perhaps denoting future action, have been held to operate in prcesenli and to be words of present sale, or executed and not executory agreements, are not unfrequent. Besides Emery v. Hitchcock, 12 Wend., 156, cited by counsel, several other decisions are referred to in Orton v. Noonan, 27 Wis., 286, 288, 289. In the present case, the whole instrument and each of the provisions contained in it being considered, the words implied a present sale of the logs and an immediate demise of the mill. They implied also a delivery of the logs, and that immediate possession was given of the mill; and consequently the case presents no question of condition precedent, the performance of which should have been averred, and the complaint states a good cause of action. The order sustaining the demurrer to the compilaint must therefore be reversed, and the cause remanded for further proceedings according to law. By the Court. — It is so ordered.