why the nearness of the relationship should change the general rule of law that a man cannot sue upon a contract to which he is not a party or privy." In view of the comparatively recent case of Borden v. Boardman, 157 Mass. 410, it is difficult to determine whether any exception to the general rule, that only a party to a contract may sue thereon, is recognized in Massachusetts. In this case there existed an agreement between the defendant and another, upon a sufficient consideration, that the defendant would pay, out of funds of the other, placed in his hands for the purpose, a specific sum to the plaintiff, a third party, who was not a party to the agreement, and from whom no consideration moved. There being a debt due to the plaintiff, it would seem that the money held by the defendant did in equity and good conscience belong to the plaintiff, and that the plaintiff should be permitted to sue. And yet the court said, in denying the right to sue, that "it is well settled in this state that no action lies in such a case in favor of such third party to recover the money so held of the party holding it." It would seem that the rule recognized in the first class of cases, as given by Justice Metcalf in Mellin v. Whipple, 1 Gray, 317, viz., that the third party may sue where the defendant has in his hands money, which, in equity and good conscience, belongs to him, if not distinctly disapproved, is at least materially limited in its application.

But

In North Carolina, an early case seemed to indicate a tendency toward the general American doctrine. In this case, Cox v. Skeen, 2 Ired. 220, 38 Am. Dec. 691, it was said: "It is true that where an agreement is not under seal, the person for whose sole benefit it is evidently made may sue thereon in his own name, although the engagement be not directly to or with him." And in as recent a case as Porter v. Richmond etc. R. R. Co., 97 N. C. 46, where the defendant promised the city board of aldermen to pay a special policeman if the board would appoint one to act at the defendant's depot, the policeman was permitted to sue the defendant. here the policeman furnished the consideration, was notified of the agreement, accepted it, and the defendant placed him on its payroll. Naturally, a direct promise to pay could be reasonably inferred. Where, also, a debtor leaves money in the hands of a third person with which to pay his creditor, in accordance with an arrangement with his creditor, such creditor may sue the third person: White v. Hunt, 64 N. C. 496; Strayhorn v. Webb, 2 Jones, 199, 64 Am. Dec. 580. In the recent case of Woodcock v. Bostic, 118 N. C. 822, it was directly laid down that the rule that, at law, a third person may maintain an action upon the promise of one person to another for the advantage and benefit of the third does not prevail in North Carolina. To the same effect, see Coffey v. Shuler, 112 N. C. 622; Peacock v. Williams, 98 N. C. 324; Morehead v. Wristou, 73 N. C. 398. But in Haun v. Burrell, 119 N. C. 544, the court said that the question had never been decided in North Carolina, and the same opinion was given in a more modified form in Sama v. Price, 119 N. C. 572. But in a very recent case, Gorrell v. Water Supply Co., 124 N. C. 328, 70 Am. St. Rep. 598, the court held that

a citizen and tax-payer had a right of action against a water company by reason of damage by fire caused by a failure of the water supply, where the water company contracted with the city to furnish water in sufficient quantity to extinguish fires. The decision seems to be placed, not merely on the ground that the contract was made for the benefit of the tax-payer, but rather upon the ground that the tax-payer had furnished the consideration of the contract. Though the American doctrine is stated broadly in this case, it is probable, in view of the earlier decisions, that a modified English doctrine will prevail in North Carolina. Even the code provision, allowing actions to be brought in the name of the real party in interest, seems to have had little effect upon contracts of this character.

American Rule―Jurisdictions, Where Held.-The American rule, in general terms, is that a third party has a right of action upon a promise made for his benefit, though he is a stranger, both to the promise and to the consideration. This rule is recognized in Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.

In Alabama, the rule was early recognized in the case of Lovely v. Caldwell, 4 Ala. 684. See, also, Shotwell v. Gilkey, 31 Ala. 724; Potts v. First Nat. Bank, 102 Ala. 286.

In Arkansas, as in many of the states, there seems to have been but little litigation upon the question, but the rule is well recognized: Chamblee v. McKenzie, 31 Ark. 155; Talbot v. Wilkins, 31 Ark. 411; Hecht v. Caughron, 46 Ark. 132.

An early case in California-McLaren v. Hutchinson, 18 Cal. 80indicated a tendency to deny the rule. In fact, the right of action was denied because there was no privity between the parties, though in a previous case-Kreutz v. Livingston, 15 Cål. 344—where money was received in trust to be paid to a third person, it was held that he might sue. The doctrine of McLaren v. Hutchinson was questioned in Lewis v. Covillaud, 21 Cal. 178, where the general American rule was recognized, and since that time the general rule has been well established. The rule, however, has not been very widely extended in California, even under the provision of section 1559 of the Civil Code, which authorizes a third party to sue upon a contract made for his benefit: See Chung Kee v. Davidson, 73 Cal. 522; Buckley v. Grey, 110 Cal. 339, 52 Am. St. Rep. 88; Savings Bank v. Thornton, 112 Cal. 255; Lisenby v. Newton, 120 Cal. 571, 65 Am. St. Rep. 203.

In Colorado, a third party for whose benefit a contract has been entered into, may not only maintain an action thereon in his own name, but he may plead it by way of set off: Green v. Richardson, 4 Colo. 584; Lehow v. Simonton, 3 Colo. 346; Green v. Morrison, 5 Colo. 18.

Connecticut recognized the right of a third party for whose bene

fit an agreement was made to sue in chancery in Crocker v. Higgins, 7 Conn. 342. The right to sue at law was admitted in Treat v. Stanton, 14 Conn. 445, but only in cases where the third party had the sole and exclusive beneficial interest in the subject of the promise. Requiring the third party to have the sole and exclusive beneficial interest has resulted in whittling away the rule almost to nothing: See Clapp v. Lawton, 31 Conn. 95; Meech v. Ensign, 49 Conn. 191, 44 Am. Rep. 225; Steene v. Aylesworth, 18 Conn. 244, and the principal case.

In Delaware, the rule is recognized: Farmers' Bank v. Brown, 1 Harr.(Del.) 330. The rule in Florida seems to be slightly limited in its application: Wright v. Terry, 23 Fla. 160; Hunter v. Wilson, 21 Fla. 250.

The American rule in its essential features is recognized in Illinois: Eddy v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Ill. 88; Bristow v. Lane, 21 Ill. 194; Ball v. Benjamin, 56 Ill. 105; Snydacker v. Magill, 24 Ill. 138; Steele v. Clark, 77 Ill. 471; Thompson v. Dearborn, 107 Ill. 87; Dean v. Walker, 107 Ill. 540, 47 Am. Rep. 467; Boals v. Nixon, 26 Ill. App. 517; Cobb v. Heron, 180 Ill. 49. The rule has its limitations, however, and where, upon the formation of a partnership, the firm agrees to perform a contract of one of its members, the firm is not liable to the third party interested: Goodenow v. Jones, 75 Ill. 48.

The earliest Indiana case shows a leaning in favor of the American doctrine: Harper v. Ragan, 2 Black. 39. But in Eastman v. Ramsey, 3 Ind. 420, the right was denied to a creditor to sue upon a promise made for his benefit. This case, while not cited, seems to be discredited in Nelson v. Hardy, 7 Ind. 364, and a promise by one to a debtor to pay his creditor was held to be actionable by the creditor. And in Day v. Patterson, 18 Ind. 114, the court said it was settled in Indiana that a third party might sue on a promise made to another for his benefit. In Davis v. Calloway, 30 Ind. 112, 95 Am. Dec. 671, the distinction seems to be recognized that a promise by one to pay another's debt may be enforced in equity by a third party, but it cannot be enforced at law until the third party has accepted it. And, while this rule, that, in the absence of an acceptance, the third party must enforce his rights in equity, seems to be established in Indiana, the distinction is of little moment in view of the fact that the systems of law and equity are now blended: Miller v. Billingsly, 41 Ind. 489; Stevens v. Flannagan, 131 Ind. 122; Carnahan v. Tousey, 93 Ind. 561. Bringing suit is sufficient acceptance: Copeland v. Summers, 138 Ind. 219. But see Campbell v. Patterson, 58 Ind. 66; Helms v. Kearns, 40 Ind. 124; Redelsheimer v. Miller, 107 Ind. 485; Boruff v. Hudson, 138 Ind. 280.

In Iowa, the rule was early recognized and has been maintained ever since: Johnson v. Collins, 14 Iowa, 63; Rice v. Savery, 22 Iowa, 470; Johnson v. Knapp, 36 Iowa, 616; Phillips v. Van Schaick, 37 Iowa, 229; German Sav. Bank v. Northwestern Water etc. Co., 104 Iowa, 717.

The supreme court of Kansas, speaking through Justice Brewer,

first laid down the rule in Anthony v. Herman, 14 Kan. 494. The limitations of the doctrine were stated in Burton v. Larkin, 36 Kan. 246, 59 Am. Rep. 541. See Mumper v. Kelley, 43 Kan. 256; Hardesty v. Cox, 53 Kan. 618.

The earliest Kentucky case, Triplett v. Helm, 5 J. J. Marsh. 651, questions the existence of such a rule. But later, in Smith v. Lewis, 3 B. Mon. 229, the rule is recognized. And in Allen v. Thomas, 3 Met. 198, 77 Am. Dec. 169, the rule that a third party may sue upon a contract, made for his benefit is recognized as well established: See Lucas v. Chamberlain, 8 B. Mon. 276; Mize v. Barnes, 78 Ky. 506; Paducah Lumber Co. v. Paducah etc. Co., 89 Ky. 340, 25 Am. St. Rep. 536.

Louisiana, following the civil law, permits an action by a third party upon a contract made for his benefit. While the ancient Roman law allowed no such action, this was later changed, and this change is recognized in the codified laws of Louisiana: Mayor v. Bailey, 5 Martin, O. S., 321; Duchamp v. Nicholson, 2 Martin, N. S., 672; Marigny v. Remy, 3 Martin, N. S., 607, 15 Am. Dec. 172; St. Joseph's Assn. v. Magnier, 16 La. Ann. 338.

The American rule is well established in Maine: Dearborn v. Parks, 5 Greenl. 81, 17 Am. Dec. 206; Hinckley v. Fowler, 15 Me. 285; Warren Academy v. Starrett, 15 Me. 443; Maxwell v. Haynes, 41 Me. 559; Coffin v. Bradbury, 89 Me. 476.

Maryland recognizes the American doctrine within certain limits: Owings v. Owings, 1 Har. & G. 484; Eichelberger v. Murdock, 10 Md. 373, 69 Am. Dec. 140; McNamee v. Withers, 37 Md. 171; Seigman v. Hoffacker, 57 Md. 321.

In Minnesota, the American rule has been recognized from an early date: Sanders v. Classon, 13 Minn. 379; Hawley v. Wilkinson, 18 Minn. 525; Follansbee v. Johnson, 28 Minn. 311. The limits of the doctrine were stated in Jefferson v. Asch, 53 Minn. 446, 39 Am. St. Rep. 618; Union Ry. etc. Co. v. McDermott, 53 Minn. 407, and Greenwood v. Sheldon, 31 Minn. 254.

The American rule prevails in Mississippi: Sweatman v. Parker, 49 Miss. 19; Lee v. Newman, 55 Miss. 365.

The earliest Missouri case-Thornton v. Smith, 7 Mo. 86-indicated a tendency to apply the strict rule that only the parties to an agreement may sue thereon. This tendency did not prevail, however, as shown by Robbins v. Ayres, 10 Mo. 538, 47 Am. Dec. 125. There must be a valuable consideration for the promise between the original parties to the contract: Jones v. Miller, 12 Mo. 408. In Page v. Becker, 31 Mo. 466, the rule was said not to apply to a promise by a vendee to pay a mortgage debt. This holding has been reversed, however: Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 70 Mo. 685. The promise to pay to a third party may be implied from the circumstances: Gibson v. St. Louis etc. Ry. Co., 76 Mo. 549. See, further, Schuster v. Kansas City etc. R. R. Co., 60 Mo. 290; Meyer v. Lowell, 44 Mo. 328; Ellis v. Harrison, 104 Mo. 270; Duerre v. Ruediger, 65 Mo. App. 407.

The general American rule was recognized in Nebraska in Shamp v. Meyer, 20 Neb. 223, though in an earlier case-Cooper v. Foss, 15

Neb. 515-it had been held that a vendee who had purchased property, under a promise to pay a mortgage thereon, was liable to the mortgagee: See Kaufman v. United States Nat. Bank, 31 Neb. 661; Chicago etc. R. R. Co. v. Bell, 44 Neb. 44; Hare v. Murphy, 45 Neb. 809.

Nevada recognizes the general American doctrine: Ruhling v. Hackett, 1 Nev. 360; Bishop v. Stewart, 13 Nev. 25; Miliani v. Tognini, 19 Nev. 133.

Most of the cases which have arisen in New Jersey, involving the right of a third party to sue upon a contract made for his benefit, have been in equity and not at law. The right to sue in equity to enforce a promise made for one's benefit is recognized, though it seems that the promise must have been made by some one who had authority to make it on behalf of the party suing: Van Dyne v. Vreeland, 11 N. J. Eq. 370. See Price v. Trusdell, 28 N. J. Eq. 200; Sell v. Steller, 53 N. J. Eq. 397. The right of action at law is also recognized: Joslin v. New Jersey Car etc. Co., 36 N. J. L. 141. New York was the first state to adopt the rule, that a third party may maintain an action upon a promise made for his benefit, and it Is from New York that most of the states derive their authorities sustaining the doctrine. The limitations upon the New York doctrine will be noticed under appropriate heads, as will those of other states, and only a general view of the rule will be treated here. The first New York case upon the subject is Schemerhorn v. Vanderheyden, 1 Johns. 139. 3 Am. Dec. 304, and while the rule is recognized by this case, what is said upon the question is dicta, for the case was decided upon another point. The leading New York case, in which the question was thoroughly discussed, is Lawrence v. Fox, 20 N. Y. 268. In this case the plaintiff was the creditor of H.. who loaned a sum of money to the defendant, upon the defendant's promise to pay it to the plaintiff. It was held that the action would lie. In Davis v. Morris, 36 N. Y. 569, where a lessee and his assignee agreed that the income from the property should be applied to certain uses, the paying of the rent being one, it was held that the doctrine of Lawrence v. Fox, 20 N. Y. 268, did not apply and the lessor had no action against the assignee, since there was no agreement to pay to him. An agreement to assume the debts of another must be supported by a consideration, in order that an action thereon may be brought by a creditor: First Nat. Bank v. Chalmers, 39 Hun, 468. See Claflin v. Ostrom, 54 N. Y. 581; Weston v. Barker, 12 Johns. 276, 7 Am. Dec. 319; Litchfield v. Flint, 104 N. Y. 543; Gifford v. Corrigan, 117 N. Y. 257, 15 Am. St. Rep. 508; Clark v. Howard, 150 N. Y. 232. No action lies upon the promise, where it is void as between the promisor and promisee: Dunning v. Leavitt, 85 N. Y. 30, 39 Am. Rep. 617. See, as to general limitations upon the New York doctrine, Wheat v. Rice, 97 N. Y. 296; Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195. The tendency in New York is to restrict the application of the doctrine: Buchanan v. Tilden, 5 App. Div. 354. This case was reversed in 158 N. Y. 109, 70 Am. St. Rep. 454, without, however, modifying this tendency. North Dakota recognizes the American rule, both in its decisions