Page v. Becker

Bates, Judge, delivered the opinion of the court. This cause was heretofore submitted to the court, and an opinion prepared but not delivered. The parties now consent that the opinion may be filed and considered as the judgment of the court. The judgment of the court below is therefore reversed, the other judges concurring. Ewing, Judge. |The only question we deem it necessary to consider in this case is whether upon the agreement alleged in the petition Page could maintain the action. The general rule, to which it is claimed this case is an exception, is, that the person from whom the consideration of the contract actually moved is the party to sue, and that a stranger [469] to the consideration can not maintain an action; in other words, that there must be a privity of contract between the parties to the suit in order to render the defendant liable to an action by the plaintiff on the contrae^ In the cases of the Bank of Mo. v. Benoist & Hackney, 10. Mo. 519, and Robbins v. Ayres, 10 Mo., 538, it was held that where the promise was made for the benefit of a third person he might maintain an action in his own name against the promiser. In the case of Manny et al. v. Frazier’s adm’r, 27 Mo. 420, which is similar to this, the principle of the former' decisions was held not to be applicable. In that case the partnership firm of Bell & Sticknell was indebted to the plaintiff on two promissory notes. Bell sold his interest in the concern to Frazier, who, on coming into the firm, agreed with B. & S. to assume to pay certain debts of the firm, among which were the two notes. It was held the action was not maintainable ; that it was not like a promise of A. to pay B. for the benefit of C., and there was no privity of contract between the defendant’s intestate and the plaintiffs. The cases of Blymire v. Boistle, 6 Watts, 182, and Morrison v. Beckley, Id. 349, cited by the court in that opinion, clearly brings this case within the principle there recognized, [in Mellen v. Whipple, 1 Gray, 324, a case exactly in point, one Rollen owed plaintiff’s testator, and had secured the debt by mortgage on his land. He afterwards conveyed the equity of redemption to Whipple, the defendant by a deed containing a clause declaring “ that said premises are subject to a mortgage for five hundred dollars, with interest, which mortgage, with the note for which it was given, said Whipple is to assume and cancel.” The court decided the action would not lie. In the case at bar, John J. Page and Ward were the debtors of One Hampton on two promissory notes, to secure which they conveyed to him certain real estate. Subsequently they sold and conveyed the same property, or their equity of redemption, to the defendant Becker, who, as the evidence tended to prove, through an agent, agreed with the grantors to pay and satisfy the mortgage. The note first due, the one sued on, not be [470] ing paid by Becker at maturity, was paid by the plaintiff to whom Hampton assigned it. The action is upon the agreement then made between John J. Page and Ward of the one part, and Becker of the other. There was no privity of contract between the plaintiff and defendant, nor did the consideration of the promise move from the plaintiff. The defendant acquired only an equity of redemption, the fee being in Hampton ; and the plaintiff, as the assignee of the latter, has the property, and also the personal responsibility of the mortgagors to secure the debt. The defendant could have had no benefit of his purchase of the equity without paying the mortgage notes, and his agreement to do so was for the benefit of his grantors, and was a matter exclusively between the parties to that deecf!j There is evidence that Becker recognized his liability to pay the notes both before and after they had been assigned by Hampton to the plaintiff, but the plaintiff does not go upon the hypothesis of a promise by Becker to him directly.. No such case is made by the petition; no express promise is averred therein, and if there had been, it would have been without consideration. Judgment reversed ; Judge Napton concurring.