Rogers v. Gosnell

Adams, Judge, delivered the opinion of the court. On the 18th of June, 1868, the de^nda^s entered into a contract under seal with John B. Worhall and others, for the purchase of a certain tract of land in Jackson county, and agreed therein to pay as part of the purchase money of said land, the sum of one hundred and fifty dollars to the plaintiffs, the said sum of one hundred and fifty dollars being one-half of the commissions due them by said Wornall & Co. The plaintiff sued the defendant on this sealed contract, and on the stipulation therein to pay them the $150.00, due them as commissions from the vendors, Wornall and others. The commissions referred to were due them as real estate agents for making the sale of the land. The stipulation offered as evidence was demurred to and the demurrer sustained, and the plaintiff took a non-suit with leave, &c., and the motion to set aside the non-suit was overruled and a judgment given discharging the defendant and for costs. This judgment is objected to as not being a final judgment from which a writ of error will lie. The judgment is that the defendant go hence and that he recover his costs, &c. It is not [469] very formal or full but I think it is substantially a good final judgment. The defendant seems to have been discharged from the action and it would be difficult to take any further steps without reversing the judgment. The main point on the merits is the demurrer to the evidence. It seems to be well established that a party for whose use a contract or a stipulation in a contract is made, may maintain a suit .in his own name on such stipulation. (Bank of Missouri vs. Benoist and Hackney, 10 Mo., 519; Robbins vs. Ayres, 10 Mo., 538; Myers vs. Lowell, 44 Mo., 328; Hanagan vs. Hutchinson, 47 Mo., 237.) The old authorities maintain that this can only be done on contracts not under seal. This distinction . was noticed by Judge Scott in Robbins vs. Ayres, 10 Mo., 538. But that was a suit on a simple contract, and the question was not properly before the court and what he said must be looked upon as obiter dicta. By recent decisions in New York, it is laid down that no such distinction exists. (Van Schaick vs. R. R., 38 N. Y., 346; Ricard vs. Sanderson, 2 Hand, 179; Coster vs. The Mayor of Albany, 43 N. Y., 399; Lawrence vs. Fox, 20 N. Y., 268.) I see no good reason for keeping up this sort of distinction betwefen contracts under seal and not under seal. If the covenant is made for the benefit of a third person, why is he not a party to it so as to maintain an action in his own name ? The party in whose name a contract is made for the benefit of another, is declared by our practice act to be a trustee of an express trust and such trustee may sue in his own name. (Harney vs. Butcher, 15 Mo., 89; Miles vs. Davis, 19 Mo., 408; 2 W. S., 1000, § 3.) It does not follow that because the trustee is allowed to sue in his own name on such a contract, that the beneficiary is precluded from doing so. A recovery by either would be a bar to another action, whether bought by the trustee or beneficiary. In some classes of trusts, the trustee alone can sue at law but this is not one of that character. [470] The courts have repeatedly held, that a person for whose benefit a contract is made may sue in his own name, when it appears on the face of the contract that he is the beneficiary. This was the law before our code of practice was adopted and that code allowing a trustee to sue has not altered this rule. Under this view, the demurrer to the plaintiff’s evidence was improperly sustained, and the judgment must be reversed and the cause remanded.