Opinion
Cause argued June 27th, 1869
Decided September 25th, 1869
H.L. Comstock, for the appellant.
L.W. Thayer, for respondent.
The first question, presented in this case, is, whether this bond gave any right of action to Harriet Perkins against the defendant.
Whatever may be said as to the rule elsewhere, the law must be regarded as settled in this State, that an agreement made by the defendant with Philip Perkins, upon the consideration appearing in this case, to pay this note to Harriet Perkins, is good and valid, and gives to her an action against the defendant, if she sees fit to adopt the arrangement made for her benefit, although she was not a party to the agreement. ( Lawrence v. Fox, 20 N YR., 268; Burr v. Beers, 24 N.Y.R., 178; Barber v. Bucklin, 2 Denio. R., 45; Judson v. Gray, 17 How. Pr. R., 289.)
The broad principle, that if one person, for a valuable consideration, make a promise to another for the benefit of a third person, such third person shall have an action on the promise, if he sees fit to adopt the arrangement, is settled by these cases. The real question in the case before us is, whether the defendant has ever made an agreement with Philip Perkins to pay this note to Harriet Perkins, upon which an action can be predicated. I do not think he has. The whole question depends upon the construction to be put upon this bond. It is a penal bond, in the usual form, by which the defendant acknowledges himself to be indebted to Philip Perkins in the sum of $15,000, in which he binds himself to pay that sum to the said Philip Perkins. Then comes the condition, that this obligation to pay this $15,000 to the said Philip shall be void, if he shall pay this note, and do the other things named in the condition; otherwise to remain in full force. Here is no express agreement to pay this note to Harriet Perkins, nor as it seems to me, is there any words in this condition importing such an agreement on the part of the defendant. The defendant's agreement is to pay this $15,000 to Philip Perkins. The rest is a mere condition or defeasance for the benefit of the defendant. It simply sets out what shall avoid the defendant's covenant or obligation contained in the penal part of the bond, and simply states the terms and conditions upon which he can exonerate himself from the debt, which he has agreed to pay the obligee. The condition, standing by itself, wants the very elements of a contract, and it seems to me very clear, that Harriet Perkins could never maintain an action upon the conditions contained in this bond, as well for the reasons above stated, as for the palpable reasons appearing upon the face of the instrument itself. It was not an instrument taken by Philip Perkins for the benefit of Harriet, but to indemnify and save himself harmless from the payment of this note and the mortgage referred to. No action will lie in her behalf upon this condition. ( Bold v. Molineaux, Dyer., 14 b., 17 a.; U.S. v. Brown, 1 Payne, C.C.R., 422; Huddle v. Worthington, 1 How. R., 423; Suffield v. Baskerville, 2 Mod. R., 36; Briscoe v. King, Cro. Jac., 281; Salisbury v. Phillips, 10 J.R., 57; Scott v. Field, 7 Wall. R., 360; Smith v. Stewart, 6 Blackf. R., 162; Culver v. Sisson, 3 Coms't. R., 264; Weed v. Covill, 14 Barb. R., 242; Palmer v. The Fort Plain, c., Plank Road Co., 1 Kern. R., 376.)
The case of Salisbury v. Phillips and others (10 J.R., 57), is in point. That was an action of covenant upon the following instrument, to wit: "For and in consideration of the sum of twelve pounds to me in hand paid, by Abraham Salisbury, I do hereby assign over to him and his assigns forever, all the estate, right and interest, which I have in the lands described in the within lease, upon this condition: If I shall pay to the said Abraham Salisbury by the first of October next, the aforesaid sum of twelve pounds, with interest, then this assignment to be void, c.; signed and sealed." Held, that no action would lie, for the reason that the assignment contained no covenant to pay, but only a condition for the benefit of the assignor, that he might redeem the lease on the payment of the twelve pounds by such a day. To the same effect is the case of Suffield v. Baskerville (2 Mod. R., 36). The case of Culver v. Sisson (3 Comst. R., 264), is the same in principle. That was an action upon a chattel mortgage, executed by the defendant to the plaintiff, under seal. There was no express covenant to pay the money, but there was a condition that the instrument should cease and be void on the payment of the sum named. Held, that no action to recover the money would lie. To this same effect is Weed v. Covill (14 Barb. R., 242).
The case of Palmer v. The Fort Plain, c., Plank Road Co. (1 Kern. R., 376), holds expressly, that no action will lie on a naked condition.
The case of Sanders v. Tilley (12 Pick. R., 554), holds that no action at law can be maintained on such a bond, if there was an express agreement in the condition. That was an action upon a bond by the defendant made to A., conditioned for the support of B., and it was held that B. could not maintain an action upon the bond.
The Court say, "this is an action of debt for the penalty of the bond, c. The penalty is one entire thing, and can only be claimed by the obligee or his legal representatives. We think it very clear, that the action cannot be maintained by the plaintiff. Cases of assumpsit, where a legal liability raises an implied promise, do not apply."
The case of Johnson v. Foster (12 Metcalf R., 167), is equally against the plaintiff's right to maintain this action. In that case, A. and B. gave a bond to C., conditioned to pay C.'s debts, and also a mortgage, as collateral security for the performance of the obligation of the bond; and it was held that the holder of a promissory note, made by C. before the date of the bond, could not maintain an action on the bond to recover of A. and B. the amount of the note. And yet, the courts of that State, in actions of assumpsit on simple contract, hold to the doctrine of Lawrence v. Fox (20 N.Y.R). See Arnold v. Lyman (17 Mass. R., 400); Hall v. Marston (id., 595). The case of Seaman v. Whitney (24 W.R., 260), holds expressly that the defendant in such case, even in case of simple assumpsit, cannot be rendered liable to pay to a third person, although funds have been placed in his hands, unless there is some agreement, express or implied, to assume such a liability.
As Harriet Perkins never had any right of action upon this bond, against the defendant, she could give none to the plaintiff by the transfer of the note and the assignment of her claims against him.
These views dispose of the case, and render it unnecessary to consider the question whether the plaintiff, at the time he commenced this suit, had not waived all right of action against the defendant, if he ever had any. It is claimed and insisted by the defendant's counsel, that the defendant made his election to hold Philip Perkins upon the note by suing him, and recovering a judgment thereon against him; and that he thereby lost his remedy against the defendant. It is not necessary to decide this question, nor is it necessary to consider the effect of the discharge of this bond by Philip Perkins before Harriet had accepted of the arrangement. The judgment of the Supreme Court must be reversed, and a new trial granted, costs to abide the event.
LOTT, J., also read an opinion for reversal, on the ground that the note for $519, proved in evidence, did not correspond either in amount or date with the note mentioned in the bond; and there was, therefore, a failure of proof on the part of the plaintiff; but none of the other judges expressed any opinion upon this point.
All the judges, concurring for reversal upon the grounds stated in MASON, J.'s, opinion, except GROVER, J., who was for affirmance, and HUNT, Ch. J., and MURRAY, J., who did not vote.
Judgment reversed.