parent had delivered to the child a written agreement made for its benefit with a third person, the contracting parties, because of such delivery, had lost all control over the agreement, for the purpose either of alteration or rescission.[1]
It is with great diffidence that I undertake to formulate these various authorities; but perhaps the final outcome of the New York cases might be stated to be that where A makes to B, for a consideration that is legal and that does not fail, a promise to do something, which promise is legally enforceable by B, and obtained by him in order to benefit C, C can enforce against A the performance of his promise, unless B sooner obtains compensation for its breach, or releases the promisor; but that third persons are no longer permitted to sue on contracts, upon the ground simply that, by their performance, they, the third persons, would be incidentally benefited.
“The general rule is, that when two persons, for a consideration sufficient as between themselves, covenant to do some act, which if done would incidentally result in the benefit of a mere stranger, that stranger has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other.”[2]
But, even amended and purified, the existing New York rule represents an anomaly, and in casting about for the origin of the apostasy one comes naturally upon Sutton v. Poole, Ventris, 318, as the entering wedge. And yet this venerable precedent was sui generis, in that the plaintiff', who claimed the benefit of the contract, was related by blood to one of the contracting parties, who himself had no personal interest in its performance, and therefore might reasonably be deemed to have made the contract solely for the benefit of the plaintiff. And, by way of apology for that decision, it should undoubtedly be remembered, that at the time of its rendition it had not yet been clearly established that love and affection were not a uniformly sufficient consideration. And it is not certain that the earlier authorities, of the nature of Sutton v. Poole, were not influenced by the fact that assumpsit, being an action on the case, was one in the nature of tort, in cases of which, of course, privity was unnecessary.[3]
And the distinction between covenants and simple contracts is
