Benefit Of

The English rule is that only he can sue from whom the consideration has moved. That is, even a promisee cannot sue, if he has not provided the consideration; 1 B. & S. 393; K R. 4 Q. B. 706. In America the rule is well-nigh universal that the promisee can sue, although the consideration has moved from a third party; Bell v. Sappington, 111 Ga. 391, 36 S. E. 7S0; Williamson v. Jager, 91 Ky. 282, 15 S. W. 660, 34 Am. St. Rep. 184; Palmer Sav. Bank v. Ins. Co., 166 Mass. 189, 44 N. E. 211, 32 L. R. A. 615, 55 Am. St Rep. 387. Sometimes the right is based upon code provisions giving the “real party in interest” the right to sue; sometimes upon the theory of a trust; sometimes upon agency. It is essential that the promise be made to the third party in fact although not in form. It must appear that the parties intend to recognize him as a primary party in interest and as privy to the promise; Pennsylvania Steel Co. v. R. Co., of the third person as its object, and he must be the party intended to be benefited; Simeon v. Brown, 68 N. Y. 355, quoted with approval in Constable v. S. S. Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903. Other New York cases are Embler v. Ins. Co., 158 N. Y. 431, 53 N. E. 212, 44 L. R. A. 512; Lorillard v. Clyde, 122 N. Y. 498, 25 N. E. 917, 10 L. R. A. 113. The difficult question comes when the plaintiff is not the promisee, hut is attempting to sue on a contract made for his benefit. Such cases can be divided into two classes: 1. Where the plaintiff is attempting to enforce an agreement made on his behalf which operates as a gift to him (he is then usually called a “sole beneficiary”). 2. Where the fulfilment of the promisor’s promise is to operate as satisfaction of an obligation due from the promisee to his creditor. The rules as to these two classes are different. The cases of the “sole beneficiary” type arise principally in regard to life insurance. England has been compelled to pass a statute to allow a beneficiary of a life policy to sue; 45 & 46 Viet. c. 75, § 11. The sole beneficiary cannot sue at law; Goodyear Shoe Mach. Co. v. Dancel, 119 Fed. 692; Baxter v. Camp, 71 Conn. 245, 41 Atl. 803, 42 L. R. A. 514, 71 Am. St. Rep. 169; Clare v. Hatch, 180 Mass. 194, 62 N. E. 250; Linneman v. Moross’ Estate, 98 Mich. 178, 57 N. W. 103, 39 Am. St. Rep. 528; Union R. Storage Co. v. Mc Dermott, 53 Minn. 407, 55 N. W. 606; Curry v. Rogers, 21 N. H. 247; Fugure v. Mut. Society, 46 Vt. 362; Ross v. Milne, 12 Leigh (Va.) 204, 37 Am. Dec. 646; Hostetter v. Hollinger, 117 Pa. 606, 12 Atl. 741. Most of the other states allow a sole beneficiary to sue even at law. The rights of the sole beneficiary in equity have not been defined as yet. Insurance cases constitute a class by themselves, in which the sole beneficiary is universally allowed to recover, either by statute or by judicial decision; 3 Am. & Eng. Cyc. 980; also, when property is given or devised to a promisor on condition that he make certain payments to others, the beneficiaries are generally allowed to sue, even in England; see Poll. Contr. 3d Am. Ed. 252. In New York the sole beneficiary cannot recover; injured workmen cannot recover on an insurance policy, taken out for their benefit by their employer; Embler v. Ins. Co., 158 N. Y. 431, 53 N. E. 212, 44 L. R. A. 512; a subway contractor is not liable to abutting owners for the negligence of sub-contractors, though he has so agreed yitli the city; Haefelin v. Mc Donald, 96 App. Div. 213, 89 N. Y. Supp. 395; a contract made by a shareholder to guarantee the credits of the corporation to a transferee is not enforceable by the corporation; Rochester D. G. Co. v. Fahy, 111 App. Div. 748, 97 N. Y. Supp. 1013. In cases of the second class where the states allow an action at law. Exceptions are:- Morgan v. Clowes Co., 73 Conn. 396, 47 Atl. 658, 51 L. R. A. 653; White v. Mill Corp., 172 Mass. 462, 52 N. E. 632; Bliss v. Plummer’s Estate, 103 Mich. 181, 61 N. W. 263. The United States Supreme Court, Maryland, New Hampshire, Pennsylvania, an'd Wyoming are undecided. Mortgage cases are in a class by themselves. Massachusetts, England, Ireland and Canada are the only jurisdictions which do not allow the mortgagee to sue the grantee of the mortgagor who has assumed the payment of the mortgage. The fundamental idea is that the promise to pay the debtor-promisee’s debt is an asset of the debtor of which the creditor can avail himself. This reasoning has gone so far as to allow the holder of a check a right of action against the bank on which It was drawn; Poll. Contr. 3d Am. Ed. 267. Such a promise is an asset of a peculiar sort, however, and can be gotten at only by the creditor for whose benefit the contract is made; Coleman v. Hatcher, 77 Ala. 217; Clinton N. Bk. v. Stude- ’ mann, 74 la. 104, 37 N. W. 112; Edgell v. Tucker, 40 Mo. 523; Baker & Smith v. Eglin, 11 Ore. 333, 8 Pac. 280; Vincent v. Watson, 18 Pa. 96; Putney v. Farnham, 27 Wis. 187, 9 Am. Rep. 459. When these conditions are not fulfilled, the creditor is denied a right of action. So when a mortgagor conveys to one who does not assume the mortgage, who in turn conveys to one who does assume it, the mortgagee cannot sue the latter; Ward v. De Oca, 120 Cal. 102, 52 Pac. 130; Brown v. Stillman, 43 Minn. 126, 45 N. W. 2; Mount v. Van Ness, 33 N. J. Eq. 262; Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195; contra, Dean v. Walker, 107 111. 541, 47 Am. Rep. 467; Crone v. Stinde, 156 Mo. 262, 55 S. W. 863, 56 S. W. 907; Brewer v. Maurer, 38 Ohio St. 543, 43 Am. Rep. 436; Merriman v. Moore, 90 Pa. 78; Enos v. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 862, 65 Am. St. Rep. 38. The result reached is right in theory since the original transferee of the mortgaged property was never liable to the creditor, and it is unlikely that the ultimate transferee intends to make a gift to the mortgagee. When a contract is only incidentally for the benefit of the plaintiff, that is, when he can neither be regarded as realizing on an asset of his debtor nor enforcing bis right as sole beneficiary, he is denied relief. In Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49, A and his wife had mortgaged his farm to X, the wife releasing her dower. Later A conveyed his equity to defendant, who agreed to pay the mortgage, the wife’s dower being expressly reserved. Defendant failed to pay, and the farm was sold on foreclosure. It was held that the wife was not intended to be benefited, and could not sue. Hatters charitable corporation, do not subject themselves to a suit by the charitable corporation In case of breach; New Orleans St. Joseph’s Ass’n v. Magnier, 16 La. Ann. 338. As to revocation between the promisor and promisee, it is generally held in the sole beneficiary contracts that the promisee may revoke before collection; the question' is whether the gift is executed or still in action; see Biddel v. Brizzolara, 64 Cal. 354, 30 Pac. 600; Smith v. Flack, 95 Tnd. 116: Emmitt v. Brophy, 42 Ohio St. 82; allowing revocation; contra, Waterman v. Morgan, 114 Ind. 237, 16 N. E. 500; Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 410, 61