Bristow v. Lane

Breese, J. This was a demurrer to a declaration containing two counts, not several to each, but to “ both counts.” The demurrer was overruled, and we think correctly, as there is no substantial objection to either count. But if the first count be ‘defective, the second is good, and the rule is well settled, that on a demurrer to a declaration containing more than one count, if one of them be good, the demurrer must be overruled. Young v. Campbell et al., 5 Gilm. R. 83 ; Walton v. Stephenson, 14 Ill. R. 77. But it is objected that the declaration shows no cause of action in favor of the plaintiffs, as they are not named in the written undertaking of the defendants—that there is no privity between them, they being strangers to the consideration. It was formerly held as a rule of law that no stranger to the ■consideration of an agreement could have an action on such agreement, although made expressly for his benefit; and this is now the rule in England. Price v. Easton, 1 Barnwell & Adolphus, 433. In this case, Littledale, J., said, “ This case is precisely like the case of Crow v. Rogers, and must be governed by it.” That case is reported in 1 Strange, 592, and is in assumpsit, the plaintiff declaring that whereas one John Hardy was indebted to the plaintiff in seventy pounds, upon a discourse between this Hardy and the defendant, it was agreed that the defendant should pay the plaintiff’s debt of seventy pounds, and that Hardy should make the defendant a title to a house. Then he avers that Hardy was always ready to perform his part of the agreement, and that the defendant, in consideration thereof, promised to pay the plaintiff. The defendant demurred, in writing, that there was no consideration moving from the plaintiff to support this promise; .and the case of Browne v. Mason, 1 Ventris, 6, and 2 Kebler, 457-527, was cited; where A, being severally indebted to B and C, and having a debt due him from D, C, in consideration that A would permit him to sue D in his name, promised to pay B. And it was held that this being matter of no trouble to the plaintiff or benefit to the defendant, he was a stranger to the consideration, and could maintain no action. On the other side was cited the case of Dutton v. Poole, 1 Ventris, 318-332, where it was held that assumpsit lay for the daughter upon a promise by the heir to pay her portion, in case the father would not fell timber; and the case of Rolls’ Abr. 32, where goods were given to A,'on consideration to pay B twenty pounds, and it was resolved B might maintain assumpsit. The court gave no opinion, but adjourned the case until it was moved again, and without much debate, the court held, the plaintiff was a stranger to the consideration, and gave judgment for the defendant. This case, decided “ without much debate,” is the substratum of all the ruling of the British courts on this question, up to this time. In this country the right of a third party to bring an action on a promise made to another for his benefit, is generally asserted, and is the prevailing rule with us. Hind v. Holdship, 2 Watts (Penn.) R. 104; Arnold et al. v. Lyman, 17 Mass. R. 400; Hall v. Morton, ib. 575; Hinkley et al. v. Fowler, 15 Maine R. 285. This doctrine was fully examined in the case of Carnegie et al. v. Morrison et al., 2 Metcalf, 381, and Shaw, C. J., in delivering the opinion of the court, adopted the case of Dutton v. Pool, 1 Ventris, 318, which the court, in 1 Strange, 592, Crow v. Rogers, did not recognize. The Chief Justice says, “ It seems to have been regarded as a settled question ever since reports have been published in this State, rather than as an open question to be discussed and considered. The position is, 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.” Ibid. 402. The case of Arnold et al. v. Lyman, 17 Mass. R. 400, is a case very like the one before us. There a debtor in failing circumstances, placed property in the hands of the defendant and took from him a written agreement reciting such deposit, and promising to pay certain debts enumerated, and amongst them that of the plaintiff. The court considered the consideration good, though it moved from the debtor of the plaintiff, and not from the plaintiff himself; and although the debtor might have maintained an action on this promise, had he been compelled to pay his debt to the plaintiff, yet the plaintiff might maintain an action in the* first instance if he elected to affirm the act done in his behalf, by the debtor, and avail himself of the promise of the defendant made for his benefit. In the case before us, real estate was conveyed by the debtor of the plaintiffs to the defendants, on their written undertaking to compromise with his creditors in Philadelphia and New York, and take up the notes held against him in those cities, for debts contracted in the spring of 1856. Now though the plaintiffs are not named in this undertaking, all that is necessary for them to show is, that this debt for which they sue, or this note, was given by their debtor who made the arrangement with the appellants, either in New York or Philadelphia, in the spring of 1856. The creditors affirm this act of their debtor for their benefit, by bringing this suit. In The Delaware and Hudson Canal Co. v. The Westchester County Bank, 4 Denio (N. Y.) 97, the court say, “We consider it now well settled as a general rule, that in case of simple contracts, the person for whose benefit the promise is made may maintain an action in his own name upon it, although the consideration does not move from him.” See also Farrow v. Turner, 2 A. K. Marshal (Ky.) 496. The doctrine of these cases has been recognized by this court in two cases, Eddy v. Roberts, 17 Ill. R. 505, and Brown v. Strait, 19 ib. 89, and we see no reason to .question its correctness. The judgment of the court below is affirmed. Judgment affirmed.