CHAPTER II.

OF A STRANGER TO THE CONTRACT.

§ 174. Can a stranger to the contract sue, or be sued, for its performance?

It will be convenient to consider the two branches of this question separately.

1. As to a stranger suing.

§ 175. It is a general principle both at common law and in equity, that a stranger to the contract cannot sue on it; and this is not varied by the mere fact that the stranger takes a benefit under it.(a)'

§ 176. Thus in a case, where protracted litigation had been undertaken by A. for the recovery of an estate, and in

(a) Crow v. Rogers, 1 Str., 592; Ex parte Peele, 6 Ves., 602, 604; Ex parte Williams, Buck, 13; Berkeley v. Hardy, 5 B. & C., 355; Lord Southampton v. Brown, 6 id., 718; per Lord Langdale, M. R., in Colyear v. Countess of Mulgrave, 2 Ke, 98; per Cotton, L. J., in Re D'Angibau, 16 Ch. D., 242; Hill v. Gomme, 5 My. & Čr., 250, 256; Chesterfield, etc., Col

llery Co. v. Hawkins, 3 H. & C., 677. The dicta of Eyre, C. J., in Fellmakers' Co. v. Davis, 1 B. & P., 102, and of Buller, J., in his N. P., 134, do not appear to be law. The Scotch law differs from ours in this particu lar, recognizing the jus quæsitum tertio. Stair Inst., B. i, t. 10, § 5.

1 One who claims an adverse interest, which was vested in him previous to the agreement, is not a necessary party. Smith v. Sheldon, 65 Ill., 212; aff'g S. C., 44 id., 68. During the pendency of an action for the specific performance of a contract to convey property, creditors of the vendor obtained judgment against him and sold such property. Held, that neither the creditors nor purchasers were necessary parties. Lecombe v. Sheldon, 20 How., 94. A stranger to the agreement claimed an interest in the purchase money. Held, that he might be made a party to the suit. Moon v. Wilkerson, 47 Miss., 633; Kimbrough v. Curtis, 50 id., 117; Boyce v. Francis, 56 id., 578. A third party, to whom the vendor had conveyed, and who had promised to pay the original vendor, was held to be a proper party defendant. Campbell v. Patterson, 58 Ind., 66. In a proper case, a part may file a bill for specific performance for all; e. g., the directors of a stock company may act for the stockholders and need not join them all. Dana v. Brown, 1 J. J. Marsh, 304; Robinson v. Smith, 3 Paige's Ch., 322; Reese v. Police of Lee Co., 49 Miss., 639.

Upon the same principle of privity an analagous case was decided in Pennsylvania. Where a widow executed an instrument. "To all whom these presents shall come," and purporting to be a general release of dower, it was held, that a son of the deceased, although not a party to the instrument, had, nevertheless, such an interest as would entitle him to the benefit of the release. Gray v. McCune, 11 Harris, 447. In Louisiana, under the civil law, the doctrine of privity is carried very far, and children, to the extent of the legitime, are not considered as heirs, but as creditors of their father's estate. Vide Succession Trimmel, decided in 1854. Opinion Book 24, page 328; Maples v. Mitty, 12 La. An., 759.

the course of these proceedings A. became greatly indebted to his solicitor, and, by a contract between A. and his brother B., A. agreed to relinquish his interest in the estate to B., in consideration of B.'s undertaking to pay the costs already incurred with interest, it was held, (b) that the solicitor, being no party to the contract, and having given no consideration for it, could derive no benefit under it capable of being enforced by him.'

§ 177. There are, however, several apparent exceptions to this principle.

§ 178. Thus (1) there may be cases in which, where A. has, as a trustee for B., contracted with C., B. may be entitled to sue both C. and A. for performance of the contract. The case of Touche v. Metropolitan Railway Warehousing Co., is a case of this sort.

§ 179. (2) There are cases of agency which may wear the aspect of exceptions to the rule. In Hook v. Kinnear (d) the two defendants were tenants in common of certain lands, and the defendant Kinnear, having been tenant of the defendant Philips' moiety, and in arrear to him for the rent, agreed with Philips to execute to the plaintiff such lease of the entire premises as Philips and the plaintiff should agree upon, and that all the rent should be paid to Philips till the arrears due to him were satisfied. The plaintiff was

(b) Moss v. Bainbrigge, 18 Beav., 478, 482; S. C., on appeal, 6 De G. M. & G., 292.

(c) L. R. 6 Ch., 671. Distinguish Re Empress Engineering Co., 29 W. R., 342. (d) 3 Sw., 417, n.

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1 In the construction of an athenæum in Maryland, a subscription book was purchased, containing the name of the plaintiff as treasurer of the fund to be collected; also the names of six others as a building committee, with authority to call in the subscription in such installments as might be required in the course of construction. A resolution of the committee afterwards called in the unpaid subscriptions, "payable to the plaintiff." Held, that the plaintiff could not maintain an action against a delinquent subscriber in his own name. tings v. Mayhew, 6 Md., 113. Upon an agreement by one person to become responsible for another for a part of the proceeds of an expected sale, an action by a third person will not lie, although the consideration moved from the third party. Tewksbury v. Hayes, 41 Me., 123. But it is also held, in the same State, that where a party, for a valuable consideration, stipulates with another by simple contract, to pay money, or do some act for the benefit of a third person, such third person, if there be no other objection than want of privity between the parties, may maintain an action for the breach of the engagement; or he may, if he choose, disregard it, and seek his remedy directly against the party with whom his contract primarily exists. Bohanan v. Pope, 42 Maine, 193. If A. contract to support B., and fraudulently refuse to fulfill his agreement, whereby B. becomes chargeable to the town, this does not entitle the town to proceed against A. in law or equity, although the original contract was intended to defraud some other party. Milton v. Story, 11 Verm., 101.

no party to the contract; Philips entered into another contract with the plaintiff for a lease of the premises to the plaintiff at £30 per annum, and executed a lease of his moiety at £15 per annum; the defendant declined to do the same in respect of his moiety, and it was objected that the plaintiff as a stranger could not sue; but Lord Hardwicke overruled the objection, on the ground that Philips might be taken as the agent of the plaintiff in the contract with Kinnear, and compared it to the case of stewards entering into contracts, and their masters enforcing them.

§ 180. (3) There are cases of persons claiming benefits under deeds who are not parties to the deeds; (e) of persons suing for the execution of the trusts of marriage settlements who are not parties to such settlements, (ƒ) and of proceedings by children under contracts antecedent to the marriages of which they are the issue. But these either refer to executed and not to executory contracts, or attract the jurisdiction of the court on grounds other than that of the specific performance of contracts resting in fieri.

§ 181. (4) There is a class of cases where the nearness of relationship of one party to the contract with the party to be benefited by it was supposed to give to the latter the benefit of the consideration and a right to sue on the contract. The Physician's case(g) was the leading authority on this point. There A. made a promise to his physician, that, if he would effect a certain cure, he would pay a sum of money to the physicians's daughter; and it was held that she might sue. In another case in assumpsit the plaintiffs, who were husband and wife, declared that the wife's father, being seized of lands which had subsequently descended to the defendant, was about to fell £1,000 worth of timber to raise a portion for his said daughter; and the defendant promised the father that, if he would forbear to fell the timber, he would pay the daughter £1,000. A verdict was found for the plaintiffs; but it was moved, in arrest of judgment, that the father alone could have brought the action, but not the husband and wife; but, after two arguments, the objection was overruled on the ground of

(e) 8 and 9 Vict., ch. 106, § 5.

Cf. Re D'Angibau, 15 ̊ Ch. D., 228, 242, and supra, § 92.

(g) Cited 1 Ventr., 6.

the nearness of relationship.(h) But these cases were in the year 1861 considered and deliberately disapproved by the court of Queen's Bench, and can no longer be considered law. (i)1

§ 182. (5) It seems that an exception may arise to the general principle that a stranger even though taking a benefit under a contract cannot sue on it, in cases where the contract is of such a nature and has been so far acted upon as to change the condition in life of the stranger, and to raise in him reasonable expectations grounded on the contract.' Such a case might be presented by a contract between A., a rich man, and B., a poor one, that A. should take B.'s child, bring him up as a gentleman, and leave him certain property, and a part performance of this on A.'s part. But here, any right which the child of B. might have to insist on the contract is derived, not from the contract alone, but from the conduct of A. in pursuance of it, and the wrong which the child would sustain, if the contract were carried out in part and not in whole. For no such equity would exist where the contract remained entirely in abeyance. (j )3

(A) Dutton v Pool, 1 Ventr., 318, 332; 2 Lev., 210, affirmed in Cam. Scac. T. Raym., 302; per Lord Mansfield, C. J., in Martyn v. Hiud, Cowp., 443.

(i) Tweedle v. Atkinson, 1 Best & Sm., 393. (j) Hill v. Gomme, 1 Beav., 540; 5 My. & Cr, 250; Lyons v. Blenkin, Jac., 245.

1 Rule as to relationship.] The rule appears to be that a relationship which is more remote than that of parent, child or wife, carries with it no moral obligation upon which a court of equity will found a decree for the specific performance of a mere executory contract. Bufford v. McKee, 1 Dana, 107; Hays v. Kershom, 1 Sandf. Ch., 258; Reed v. Manarsdale, 2 Leigh., 569; Caldwell v. Williams, Bailey Ch., 175; Chandler v. Neale, 2 Hen. & Mumf., 124; Parker v. Carter, 4 id., 273; Hawrey v. Alexander, 1 Rand., 219.

* In New Jersey it was held, that where an infant child was taken by an uncle, under an agreement between the father and such uncle that such child should be adopted as his own, and the child lived with the uncle twenty five years, and had no share in his father's estate. Held, that the child might maintain an action to enforce the agreement. Van Dyne v. Vreeland, 11 N. J. Eq. (3 Stock.), 270.

3 Limitations in marriage settlements to collateral relations have been repeatedly held, in England, to be voluntary. Reeves v. Reeves, 9 Mod, 132; Johnson v. Legard, 3 Ves., 352; Cormick v. Trapaud, 6 Dow., 36. So, for example, limitations to collaterals, in a marriage settlement, made by a tenant in tail, are voluntarily against a subsequent purchaser for a valuable consideration, in the same manner as if the settler had had the fee. Cormick v. Trapaud, 6 Dow., 36. Limitations in favor of issue of a second marriage seem to stand upon a different footing and to be held good. Clayton v. El Hilton, cited 3 Madd., 362; Ithell v. Beane, 1 Ves., 216.

That the doctrine of privity in respect to collaterals has been carried to the same extent in this country as in England, is evidently not the case. The subject has come but seldom before the courts, and was for a time a much mooted point; but it now seems clearly to be established that collateral consanguinity

2. As to a stranger being sued.

§ 183. Generally a stranger to the contract is not a proper defendant to an action for enforcing it.(k) But this general rule is subject to exceptions.

§ 184. If a stranger to the contract gets possession of the subject-matter of the contract with notice of it, he is or may be liable to be made a party to an action for specific performance of the contract upon the equitable ground of his conscience being affected by the notice.

§ 185. Thus, where S. contracted with P. for the sale to different where the action is for rescission. See Aberaman Ironworks v. Wickens, L. R. 4 Ch., 111.

(k) See supra § 140, and per Stuart, V. C., in Bishop of Winchester v. Mid Hants Rail. way Co, 21, and West Midland Railway Co. v. Nixon, 1 H. & M., 176. The case may be

is not a meritorious consideration, upon which a court of equity will specifically enforce an executory covenant or agreement. The case of Buford's Heirs v. McKee, 1 Dana, 107, in the Court of Appeals in Kentucky, is directly in point. The defendants took the land by devise from one who in his life-time had executed a covenant to Buford (who was his nephew), to convey the same land to B. at the covenanter's death. On a bill by B.'s heirs for the specific performance of the agreement, it was refused by the court, on the ground that the covenant was voluntary, and that the relationship between the parties did not constitute a meritorious consideration. And in Hayes v. Kershaw, 1 Sandf. Ch., 258, the assistant vice-chancellor, after quoting Buford's Heirs v. McKee" with approbation, decided that relationship, such as that of a brother, nephew, neice, etc., did not constitute a good consideration; that it carried with it no moral obligation as that of providing for a wife or children, or parent, upon which a court of equity would found a decree for specific performance of a covenant. In Maryland it has been decided, that the consideration of mutual love and affection is sufficient in a deed; but a mere executory contract which requires a consideration as a promissory note, cannot be supported on the consideration of blood or mutual love and affection; something more is necessary-some valuable consideration-or it cannot be enforced at law or in equity. Pennington v. Gittings, 2 Gill. & John., 208. In Virginia, a son and son-in-law promised in writing to pay a debt held against the estate of their deceased father and father-in-law. Neither of them was executor, and it did not appear that there was any deficiency of assets for the payment of debts, or that either of them had any larger portion of the estate than the other children. Held, that the promise was nudum pactum. Chandler v. Neale, 2 Hen. & M., 124; Parker v. Carter, 4 Mun., 273. A. being wealthy and childless, verbally promised his brother B, who was poor and had many children, that if he would not remove to the west country, but would move to and settle on a lot of land of A. he would convey it to him. B. accepted the offer. and took possession of the land; held, that the promise was not supported by either a valuable or meritorious consideration, and would not be specifically enforced against the heirs of A. Reed v. Vannorsdale, 2 Leigh, 569. In Caldwell v. Williams, Bailey's Ch., 175, it is said, that "no agreement can be enforced, either in law or in equity, which is not founded on a consideration." Some agreements which are termed voluntary, are executed in equity, when made in favor of a wife or children; but this is done only where the instrument is under seal, which imports a consideration, and renders the agreement valid at law; and there is no instance of an agreement being enforced, which is not only voluntary in the equity sense of the word, but also nudum pactum at law. The rule, in this country, seems to have never been extended to relations more remote than children or wife. See, also, Hawey v. Alexander, 1 Rand., 219.