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EXECUTORS trator, neither A.'s administrator nor A.'s executor will AND represent M.

ADMINIS

TRATORS.

Executor

dies with

out

proving will.

Where an executor dies without proving the will, his executor does not represent the original testator (n).

(n) 1 Williams, Executors, 6th ed., 244–246.

CHAPTER XI.

ACTIONS ON CONTRACT.

DEFENDANTS.-GENERAL RULES.

RULE 46.-No person can be sued for a breach of contract who is not a party to the contract (a).

GENERAL
RULES.

RULE 46.

can be sued

on con

tract who party.

is not a

The ground on which one person is liable in an action No one on contract at the suit of another is, that he has made to the latter person, either directly or indirectly, either expressly or as the result of his acts, such a promise as the law considers binding, and has broken this promise. No one, therefore, who is a stranger to a contract can be sued upon it; or, in other words, no one can be sued for the breach of a promise except the person who has made the promise (b).

The mere fact, therefore, that X. has received a benefit from A. will not, of itself, render X. liable to be sued by A. Thus A.'s voluntary courtesy is not the ground of an action (c); and if A. voluntarily and without any request from X., pays X.'s debts or otherwise relieves him from liability, A. does not thereby render X. liable to be sued by him (d). M. was employed by the defendants, X. and Co., to carry certain goods for them. M. delegated the whole employment to A. (the plaintiff), who carried the goods without any communication with

(a) Or who does not incur liabilities as representing an original party to the contract, Rule 10, note (a), ante.

(b) Rule 7.

(c) Lampleigh v. Braithwait, 1 Smith, L. C., 6th ed., 139. (d) See Pownal v. Ferrand, 6 B. & C. 439, 443.

GENERAL

RULES.

66

X. and Co. It was held, that A. could not sue X. and Co. for compensation for the work done by him (ƒ), since there was no privity between the plaintiff and the defendants. There was nothing by which the defendants could conjecture that the plaintiff would be introduced to them: nothing by which they should know that they should ever meet with such a person as the plaintiff. The defendants must indeed know that some persons would be employed under M. . . . . but there is nothing whereby they ever authorized M. to employ any one person to conduct the whole [business] . . . . The defendants looked to M. only for the performance of the work, and M. had a right to look to the defendants for payment, and no one else had" (g). Nor can one person

be made liable to another on a contract to which he does not assent, in consequence merely of that other meaning to deal with him as a contractor. This principle is illustrated by the following case (h), the facts of which appear from the judgment of Bramwell, B.

"The admitted facts are, that the defendants sent to a shop an order for goods, supposing they were dealing with [M.]. The plaintiff, who supplied the goods, did not undeceive them. If the plaintiff were now at liberty to sue the defendants, they would be deprived of their right of set-off, as against [M.]. When a contract is made, in which the personality of the contracting party is or may be of importance, as a contract with a man to write a book, or the like, or where there might be a set-off, no other person can interpose and adopt the contract. to the difficulty that the defendants need not pay anybody, I do not see why they should, unless they have made a contract either express or implied. I decide the case on the ground that the defendants did not know that the plaintiff was the person who supplied the goods, and that allowing the plaintiff to treat the contract

(f) Schmaling v. Thomlinson, 6 Taunt. 147.

(g) Ibid., 149, judgment of Gibbs, C. J.

(h) Boulton v. Jones, 2 H. & N. 564; 27 L. J. 117, Ex.

As

as made with him, would be a prejudice to the defendants" (i).

Though expressions in the judgment cited, suggest that, under some circumstances, the plaintiff might have made the defendants liable, although they had no intention of dealing with them, the principle of the case seems to be, that "if a man goes into a shop and makes a contract, intending it to be with one particular person, no other person can convert that into a contract with him" (k). "It is a rule of law, that if a person intends to contract with A., B. cannot give himself any right under the contract" (l).

The following rules are applications to the different classes of contracts, of the principle that no one can be sued on a contract who is a stranger to it.

Rule 47 fixes who is the person by whom a simple contract is to be considered made, or, in other words, who is the person who is to be sued for the breach of a simple

contract.

Rule 48 fixes who is the person by whom a contract by deed, is to be considered made, or, in other words, who is the person who is to be sued for the breach of a contract by deed, i. e., a covenant (m).

GENERAL

RULES.

RULE 47.-The person to be sued for the breach of a simple contract is the person who promises or who allows credit to be given to him.

To constitute a simple contract, there must be a promisor, a promisee, and a consideration (n). But, though

(i) Boulton v. Jones, 2 H. & N. 566. (k) Ibid., judgment of Martin, B.

(7) Ibid., 565, judgment of Pollock, C. B. Compare Hardman v. Booth, 1 H. & C. 803; 32 L. J. 105, Ex.

(m) All the real or apparent exceptions to Rule 46 are exceptions to Rule 47, and are considered under that head.

(n) See as to different kinds of considerations, Lampleigh v. Braithwait, 1 Smith, L. C., 6th ed., 142, and pp. 81-83, ante.

RULE 47. The person

to be sued on simple contract is the person

who pro

mises.

Q

GENERAL
RULES.

there must exist a consideration, it is not necessary in order to bind the promisor that the consideration should be anything which, in the ordinary use of the word, benefits the promisor. Thus, if X. promise A. to pay him 1001. a year in consideration that A. will marry M., the promise is binding upon X., and A., if he marries M., may sue X. for the non-payment of the 100l (o). If X. promise A. to pay for goods to be supplied by A. to M., X. is liable to be sued by A. for the price of the goods, and M. is not liable.

When a simple contract is wholly in writing, the contract itself points out who it is who promises, and who, therefore, is to be sued for a breach of the agreement. But the contract, though it points out one person who is liable need not point out the only person who is liable; for when a contract is simply in writing (i. e., not under seal), though the laws of evidence do not allow it to be shown that X., who on the face of the instrument makes a promise to A., is not liable on the contract, they place no difficulty in the way of showing that some other person, Y., is also liable (p). Nor again, where a contract is expressly made by word of mouth, e. g., where X. in so many words promises A. to pay A., e. g., for goods supplied to M., can there arise any difficulty, supposing the facts to be capable of proof, in fixing upon X. as at any rate one person to be sued for a breach of the contract.

Difficulty arises when the contract to be sued upon is not an "express contract," i. e., an agreement expressed either in writing or distinctly by word of mouth, but a contract arising from the acts of the parties, e. g., in the course of business between them.

The question to be considered in this case is, who was the person who allowed the plaintiff to give credit to him, or placed himself in such a position as to entitle the plaintiff to give credit to him. X., for example, orders

(0) Shadwell v. Shadwell, 9 C. B., N. S., 159; 30 L. J. 145, C. P.
(p) Thomson v. Davenport, 2 Smith, L. C., 6th ed., 349-361.

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