Page:Harvard Law Review Volume 8.djvu/122

I06 HARVARD LAW REVIEW. sioii was affirmed by the Court of Errors and Appeals on the same grounds,^ and although the court said that in some cases actions of assumpsit might be maintained on a promise made by the defendant to a third person without any consideration moving between the parties, and that no such rule existed with respect to sealed instruments, yet it is obvious that the decision in this case must have been just the same, whether the agreement to assume the mortgage had been in a simple contract or a deed under seal. The liability to such an agreement does not rest upon a promise to a third person, but upon equitable considerations arising out of the fact that the property is held subject to an existing liability to pay the debt. If the liability arose out of the promise, then it could not be affected by any new agreement between the original parties or change in their relations. These cases are in themselves enough to show that what is called the prevailing American rule is not in fact a general rule of law, and that the principles applicable to those cases in which a suit is brought by one for whose benefit a contract is made, ought not to be expressed in this general form. There is no need of so broad a rule, nor is it necessary to declare any rule that is contrary to the established principles of the law of contracts at common law. It is sufficient to decide each case upon principles which apply to it, and will be found that the result of the decisions will not require the enunciation of a rule giving strangers to contracts a right to sue upon them. Edward Quinton Keasbey. Newark, N. J., May 8, 1894. 1 Crowell V. Hospital of St. Barnabas, 27 N. J. Eq. 650.