Harberg v. Arnold

ELLISON, J. This is an action seeking to charge defendant with the payment of a promissory note which it is alleged he assumed and undertook to pay. The judgment in the trial court was for defendant. [239] Contracts: promise for the benefit of third party: privity: action: successive grantees. [238] The point decisive of this case renders it only necessary to state the following facts: The note in question was given for a part of the purchase price of certain real estate and was secured by deed of trust on the realty conveyed. The property was sold from to another until finally it was conveyed to one T. O. Alexander. In the deed to Alexander there was no clause whereby -he did, or. was to assume the note. Alexander then sold and conveyed to the defendant in which deed it was recited that the defendant assumed and agreed to pay the note in controversy. Plaintiff’s intestate is the holder of the note by successive indorsements from the original holder, and he relies, to sustain this action, on the ground that the promise made by defendant to [239] Alexander in accepting the deed aforesaid inures to the benefit of his intestate. The rule as now seems to be set-tied in this state is that while an action may be maintained by a third party on the promise of one to another for the benefit of such third party, yet there must be a debt or duty owing by the promisee to the third party. Ins. Co. v. Trenton, 42 Mo. App. 118; Howsmon v. Trenton, 119 Mo. 304; St. Louis v. Von Phul, 133 Mo. 561; Hicks v. Hamilton, 144 Mo. 495; Devers v. Howard, 144 Mo. 671; Street v. Goodale, Barger & Co, 77 Mo. App. 318. In the case before us Alexander is the promisee, defendant having made the promise to him. But Alexander had not assume! the payment of the note in the deed conveying to him the property. He was under no obligation, legal or equitable, to pay the note to the holder, this plaintiff’s intestate. So, therefore, under the rule aforesaid, the plaintiff can not recover. But it is 'urged upon our attention that defendant’s agreement to pay the note in controversy was a part of the purchase price of the land he bought of Alexander, and that if he prevails in this action he gets the land without paying the price. This was no concern of plaintiff’s intestate. The promise was not made to her and she can not come into a controversy exclusively between others. The obligation was with Alexander and not with her, and he did not owe her anything. It was necessary, as we have seen, in order to establish such a privity as would let her claim the promise to another that that other should have owed her something. The judgment will be affirmed. All concur.