Page:Harvard Law Review Volume 12.djvu/584

564 HARVARD LAW REVIEW. rule must apply to foreign as well as to domestic agents, — and repre- sentatives abroad are often required to negotiate transactions of great importance without the possibility of knowing whether the death of their principal has revoked their authority ; that accordingly the practical pur- poses of trade and commerce might, perhaps, be furthered by the more equitable rule of the civil law. But cannot it be said in answer to this argument that those who deal with an agent knowingly assume the risk that without notice his authority may be revoked by operation of law? And is not the accepted doctrine of the common law one of sound good sense, in perfect conformity with the law of agency? That system rests fundamentally on the theory that the agent is identified with the prin- cipal ; that the act of the servant is the act of the master. Nothing surely can be the principal's act which is done after his death. The Beneficiary of a Contract not a Cestui que trust. — In the case of Moore v. Triplett, Supreme Court of Appeals of Virginia, Vir- ginia Law Register, Vol. IV., page 681, it appeared that a debtor trans- ferred land to a purchaser in consideration, inter alia, that the purchaser promised to pay certain of his debts. The purchaser failed to perform his promise. It was held that, apart from the personal liability on the contract, the land conveyed was subjected to a trust for the debts, and that the trust might be enforced against a grantee who took the land from the purchaser without giving any consideration. The decision seems clearly wrong. The purchaser entered into a contract to pay debts. He in- tended a liability to the person he contracted with, — to no other. The performance of his side of the contract would benefit the original creditor, but that is no reason for giving the creditor a hold on the contract. The case goes much further than to allow a beneficiary to sue on a contract to which he is not a party ; it declares the purchaser a trustee of the con- sideration he received, and makes the beneficiary a cestui. But the pur- chaser had no idea of placing himself under a liability to the beneficiary, no idea that he was putting himself into the jaws of equity at all. The court held that because he assumed a legal liability he should be held to an equitable one as well, so laying a burden upon him without reference to any demand of conscience or to any misconduct. The practical result of this decision was that the third party beneficiary of the contract got a lien on the assets of the purchaser which no creditor of the purchaser could get. Yet the position of that beneficiary in the transaction was that of a mere volunteer, for whom equity should take no step. The decision of the principal case is not law in any other jurisdiction, and rests on no authority. The fundamental distinction which the court disregard, and the importance of it, are perhaps most aptly illustrated by certain partnership cases. If the joint property in a partnership is as- signed, at dissolution, to one of the partners upon trust to pay the firm debts, it must be appropriated for that purpose. See Ames, Cases on Partnership, p. 218, note. If, however, the property is assigned to him in consideration of his promise to pay the firm debts, and the whole trans- action is in good faith, it has been held, Howe v. Lawrence, 9 Cush. 553, that the property has become the separate estate of the single partner, and liable for his individual debts.