one of the trustees renounces, the whole property vests in those who accept the trust. (y) When, however, the execution of the deed by one of the parties is necessary to create or transfer some estate or interest, the creation or transfer of which forms the foundation or consideration for the covenants and stipulations contained in the deed, the party neglecting to execute cannot maintain an action upon the covenants; as in the case of an indenture of lease, where the covenants are entered into by the lessee with the lessor in contemplation and in consideration of a lease, if the lessor neglects to execute the instrument, so that no lease is actually granted, he cannot maintain an action upon the covenants, (z) unless the contract has been carried into effect by the actual entry of the lessee upon the lands, or the covenantor has had the full benefit of the thing intended to be done. (a) SECTION II. OF THE PLAINTIFFS IN ACTIONS UPON SIMPLE CONTRACTS. The right of action upon simple contracts not confined to the parties to such contracts.-The ancient rule of the common law, which, in the case of contracts under seal, inter partes, provides that a person who has not been made a party to the contract shall not maintain an action upon it, does not extend to SIMPLE CONTRACTS in inter partes. Thus, where tutors dative, appointed by a Scottish court guardians of an infant heir, entered into an agreement for a lease, which was described to be made between the tutors dative of the one part, and the defendant of the other, whereby a salmon fishery, belonging to the infant, was demised by the tutors dative to the defendant for four years at a certain rent, which the defendant promised to pay to the infant, it was held, that the infant might maintain an action in his own name upon the agreement, to recover arrears of rent, although he was no party to the contract. (b) Neither is the right of action upon simple contracts confined, as in deeds, to the person with whom the contract is in terms made, but the person for whose use or for whose benefit a simple contract has been (y) Small v. Marwood, 9 B. & C. 300. (z) Soprani v. Skurro, 1 Danv. 74, p. 3.; Yelv. 18, Com. dig. Cov. F. Rose v. Poulton, 2 B. & Ad. 831. Cardwell v. Lucas, 2 M. & W. 111; ante, p. 185. (a) Pistor v. Cater, 9 M. & W. 315; ante, ch. 6, p. 185. (b) Carnegie v. Waugh, 2 D. & R. 277. Fitzmaurice v. Wangh, 3 D. & R. 273. Sutherland v. Pratt, 13 Law J., N. S., (Exch.) 246. entered into, may maintain an action thereon, although he is no party to it, and although the contract is not, in express terms, made with him, but with another in his behalf. (6) But it is said, that “ a STRANGER TO THE CONSIDERATION upon which a simple contract is founded cannot maintain an action upon the contract." If the act or service, for example, forming the cause or consideration for the promise to the plaintiff be done or performed by some third party, and not by the plaintiff himself, nor at his instance and by his procurement, the plaintiff is said to be a stranger to the consideration, and he cannot maintain an action upon the contract. Thus, where one Price, being indebted to the plaintiff in the sum of 137., agreed to work for the defendant at certain wages, and leave the amount earned by him in the defendant's hands, and the defendant, in consideration thereof, promised to pay to the plaintiff Price's debt to the plaintiff, and the work having been performed, the plaintiff brought an action against the defendant for the non-payment of the money, and obtained a verdict for the amount, judgment was arrested on the ground that he was a stranger to the consideration. (c) Very slight circumstances are, however, sufficient to connect the consideration with the promise, so as to enable the promisee to maintain an action thereon. If the act or service, for example, forming the consideration for the defendant's promise to the plaintiff has been rendered to the defendant, at the instance and request, and through the instrumentality and procurement of the plaintiff, it has been held that the consideration moves from the plaintiff so as to enable him to maintain an action upon the promise. (d) A parishioner having been excommunicated, on the prosecution of the churchwardens, for non-payment of a church rate, promised the churchwardens to pay them a certain sum in consideration of an absolution from the sentence of excommunication, to be granted him by the bishop, and it was held, in an action brought by the churchwardens for a breach of the promise, that the circumstance of the absolution having been granted by the bishop at the instance and request of the churchwardens, and by reason of the promise to pay them the money, was an answer to the objection that the consideration did not move from them, but from the bishop. (e) (b) Sharpe's case, Latch. 272, Poph. 81; 3 Cro. 77. Howard v. Approbert, Litt. 85. Holt, J., Yard v. Eland, 1 Raym. 368; 1 Salk. 116, s. c. Evans v. Marlett, 1 Raym. 271. (c) Price v. Easton, 4 B. & Ad. 434. 1 N. & M. 303, s. c. Crow v. Rogers, 1 Str. 592. Bourne v. Mason, 1 Ventr. 6; 2 Keb. 457, s. c. Taylor v. Watson, 4 M. & R. 259. Tomlinson v. Gell, 6 Ad. & E. 564; 1 N. & P. 588, s. c. (e) Curtis v. Collingwood, 1 Ventr. 297; 2 Lev. 119, s. c.; 3 Keb. 435. The consideration may be said, indeed, to draw after it the promise, so that the promise, to whomsoever in fact made, shall follow the consideration, and be deemed, in construction and contemplation of law, to be made to the party from whom the consideration moves. (ƒ) The defendant in an action of assumpsit had promised the father of the plaintiff, that if the plaintiff would marry the defendant's daughter, he, the defendant, would pay to the plaintiff the sum of 201. The marriage was celebrated, and the plaintiff brought his action to recover the 207., when it was objected that the promise was not made to him, but to his father, but the court held that the action was properly brought by the son, who had performed the meritorious act forming the consideration for the promise, and was to have the benefit of the promise. (g) An action was brought upon a guarantee which had been given by the defendant to the plaintiff, and was to the following effect :-"To Mr. John Garrett; Sir, I understand from Mr. Gibbons that you had the goodness to consent to advance 5507. &c. upon my assurance, which I hereby give, that provision shall be made for repaying you this sum, &c." At the trial it appeared, that the plaintiff was a partner with two other persons in a banking house, and that the firm had advanced the money, whereupon the court said to the plaintiff, "You did not make the advance, and cannot maintain the action." And then another action was brought upon the guarantee, in the name of the firm, when it was holden that they were the proper parties to sue upon the contract, as the consideration moved from them, although the promise was made to the one partner only. (h) If there is A BENEFIT to the defendant, and a LOSS to the plaintiff, consequential upon, and directly resulting from, the defendant's promise in behalf of the plaintiff, there is a sufficient CAUSE or CONSIDERATION moving from the plaintiff to enable the latter to maintain an action upon the promise to recover compensation. (i) Sir Edward Poole was about to cut down 1,000l. worth of timber growing on his estate, for the purpose of portioning his daughter Grisel, when the eldest son and heir promised Sir Edward, that if he would forbear to fell the timber, he, the son, would pay his sister Grisel 1,000l. Sir Edward, confiding in his son's promise, allowed the timber to stand, and after his death, the land with the timber growing thereon, descended to the son, who then refused to fulfil his promise. The daughter and her husband (f) Martyn v. Hind, Cowp. 437; Doug. 142, s. c. Sadler v. Payne, Sav. 23, 24; and see post, ch. 9, sec. 2. (g) Provender v. Wood, Het. 30. (h) Garrett v. Handley, 3 B. & C. 462; 5 D. & R. 319; 4 B. & C. 664; 7 D. & R. 144, s. c. (2) Cowp. 294. Best, C. J., Morley v. Boothby, 3 Bing. 113; 10 Moore, 395, s. c. brought an action against him, and obtained a verdict, when it was objected, in arrest of judgment, that the promise was made to Sir Edward, the father, and not to the daughter, that the consideration did not arise from the latter, and that the action ought to have been brought by the executor of the deceased Sir Edward; but judgment was given for the plaintiffs, for the son had the benefit of having the timber, and the daughter had lost her portion by reason of the brother's promise. (k) Rookwood having issue three sons, was about to charge his lands with 407. per annum to each of his youngest sons for their lives; but the eldest son desired him not to charge the land, and promised to pay the younger sons duly the 407., and Rookwood, confiding in this promise, neglected to make the provision he had intended for his younger children out of the land. After his death, the eldest son refused to fulfil his promise, and the two younger sons brought an action for the recovery of the money, and "the whole court held clearly" that the action was well brought, and that it was a good consideration, for the defendant's land would have been charged with the rents but for his promise to pay the money to the plaintiffs. (7) It has been held, also, that the near relationship of parent and child extends to the child an interest in a consideration and contract entered into by the parent in its behalf and for its benefit, that the parent may be considered as the mere agent of the child in whose behalf and for whose benefit the contract is made, and that the latter may, consequently, maintain an action upon it. "There is," saith Scroggs, C. J., "such apparent consideration of affection from the father to his children, for whom nature obliges him to provide, and such a nearness of relationship between them, that the consideration and promise to the father may well extend to the children."(m) If a man should say, I Give me a horse, and I will give your son 10., the son may bring the action, because the gift was upon consideration of a profit to the son." Thus, where the defendant promised the father, that if the father would surrender a copyhold to the defendant, the defendant would pay the daughter 207., and the daughter brought her action upon this promise, it was held maintainable, and that she was entitled to recover the money (n) So, where the defendant promised a physician, that if he succeeded in effecting a particular cure, he, the 66 (Rookwood's case, 1 Croke, 164. (m) Lev. p. 211. "Where a promise is made to the father, for the benefit of the son, the son may bring the action." Hardr. 321. (n) Thomas v. -, Styles, 461. defendant, would give a certain sum of money to the physician's daughter, and the daughter brought the action, it was adjudged maintainable, "for the nearness of the relation gives the daughter the benefit of the consideration performed by the father." (o) The plaintiff in his declaration alleged that an agreement had been entered into between him and the defendant for the marriage of the plaintiff's son with Constance, the defendant's kinswoman, and that the defendant, in consideration that the plaintiff would settle an estate upon the said Constance, for her jointure, promised the plaintiff to give the plaintiff's son 2007., in marriage with the said Constance, and then averred that the marriage had been celebrated, and that the plaintiff had assured the lands, and that the defendant had neglected to pay the 2007. After a verdict for the plaintiff, it was moved in arrest of judgment that the action ought not to have been brought by the father, but by the son, for whose benefit the contract had been entered into, and who was to have the advantage thereof; and of this opinion was the court, and judgment was given for the defendant. (p) A contrary doctrine, however, was laid down in Pine v. Norris; (q) but that decision has met with disproval, and has been overruled. (r) In another case it was held that either the parent or the child might maintain the action. The plaintiff there sued as the administratrix of the promisee who died intestate, and declared that upon an intended marriage between the intestate's daughter and the defendant's son, it was agreed that the intestate should give a portion of 50l. with his daughter to the defendant's son, and that if the daughter survived the son, the defendant should pay her 1007. after his death, and the declaration then alleged mutual promises between the intestate and the defendant to perform the agreement, and went on to show that the marriage was solemnized, and that the intestate paid 507., and died, and that then the son died, and assigned, as a breach of the defendant's promise, the non-payment of the 1007. After verdict for the plaintiff, it was moved in arrest of judgment that the action should have been brought by the daughter; but judgment was given for the plaintiff for the consideration moved from the intestate, and the promise was made to him, yet it was agreed that the action might have been brought by the daughter. (s) The more correct principle would appear to be that the action should be brought by the party who has sustained the damage by reason of the (0) Cited in Bourne v. Mason, 1 Ventr. 6. (p) Levet v. Hawes, Cro. Eliz. 619, 652; Het. 176, s. c. Rainer v. Mortimer, Brownl. 40. (2) Cited 2 Lev. 211. (r) Dutton v. Poole, Jones T. 103; T. Raym. 303; 2 Lev. 212. (s) Bafeild v. Collard, Aleyn. 1. Bell. Chaplain, Hardres, 321. |