Open main menu

Page:Harvard Law Review Volume 1.djvu/238

This page has been validated.

clearly recognized by those Courts that accept the doctrine to which exception is taken.[1]

I think that it will be found that most of the cases, in all jurisdictions, in which a stranger to the contract has been permitted to enforce it, and however broad the ground of decision given, are distinguishable on their circumstances and divisible into the following heads, — a. Novation; b. Agency; c. Action of money had and received; d. Negligence; e. Trusts; f. Nearness of relationship; g. Privity of estate.

a. Novation. — This, of course, refers to the substitution of a new obligation for an old one, which is thereby extinguished. Strictly, indeed, in that case the plaintiff is not a stranger to the agreement, regarding the whole transaction as a single one. A legal consideration actually proceeds from plaintiff to defendant (see Bank v. Grand Lodge, 98 U. S. 123), in which, by-the-by, an admirable criticism of the Lawrence v. Fox principle is stated by Justice Strong: “But where a debt clearly exists from one person to another, a promise by a third person to pay such debt, being primarily for the benefit of the original debtor, and to relieve him from his liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity, and, if the original creditor can also sue, the promisor would be liable to two separate actions, and therefore the rule is that the original creditor cannot sue. His case is not an exception from the general rule that privity of contract is required.”

b. Agency. — A contract made by an agent on behalf and for the benefit of his principal may, of course, be ratified and enforced by the principal. The promisee is regarded as the agent, though in form the principal.[2]

c. Negligence. — Such actions, even where sounding in contract, are really founded upon the defendant’s tort. Independently of the express obligation, a defendant’s negligence, resulting in injury to the plaintiff, who has not contributed thereto, is actionable. So that, e.g., where a servant, travelling with his master, who applied and paid for his transportation, lost his portmanteau through the negligence of the railway company, the servant was permitted to recover its value from the company.[3]


  1. See cases supra.
  2. See opinions, Johnson, C. J., and Denio, J., in Lawrence v. Fox, supra.
  3. Marshall v. York, 11 C. B. 655.