And it has been held that the obligation involved in the condition of a bond is not such a promise as is available to any one, not the obligee of the bond. “But it is not every promise made by one to another, from the performance of which a benefit may ensue to a third, which gives a right of action to such third person; he being neither privy to the contract nor to the consideration, the contract must be made for his benefit, as its object, and he must be the party intended to be benefited.”[1]
Where A sold certain property to B, the proceeds of which were to be paid to C, and a warrant of attachment was served upon B, in an action to recover a claim against A, and before these proceeds had been distributed, it was held that the sheriff was entitled to recover from B. It reads like a bit of irony to find Judge James using the words: “Privity of contract was once deemed of some importance in testing the right of one who sought to enforce an agreement. . . . Can it be doubted that the original creditor could maintain an action for the original debt?”[2]
And where a defendant, holding under a warranty deed, by which he had assumed the mortgage made by his grantor, was evicted by paramount title, the covenant of assumption was held not enforceable by the mortgagee, notwithstanding Lawrence v. Fox and Burr v. Beers. “But I know of no authority to support the proposition, that a person not a party to the promise, but for whose benefit the promise is made, can maintain an action to enforce the promise, where the promise is void, as between the promisor and the promisee, for fraud, or want of consideration, or failure of consideration. It would be strange, I think, if such an adjudication should be found.”[3]
But is not the argument with Judge Earl, who, in a dissenting opinion, protests against these artificial distinctions? “The notion that the right of the third party to enforce such a promise depends solely upon the doctrine of equitable subrogation, as defined in King v. Whitely (10 Paige, 465) and Trotter v. Hughes (12 N.Y. 74), has been thoroughly exploded in Burr v. Beers, Coster v. The Mayor, Thorp v. The Keokuk Coal Co., and many other cases.”
It is no wonder that an occasional Court of original jurisdiction is carried to curious extremes in trying to logically pursue these refinements. So late as January last we were told that where a
