Page:Harvard Law Review Volume 9.djvu/261

HARVARD LAW REVIEW. VOL. IX. NOVEMBER 25, 1895. NO. 4- CONSIDERATIONS ^MOVING FROM THIRD PERSONS. IN most actions upon contracts, the consideration " moved" di- rectly from the plaintiff to the defendant, either by way of a benefit conferred or a loss sustained, or both, and the promise sued upon was made by the defendant directly to the plaintiff. But occasionally the whole consideration arises between the de- fendant and some third person other than the plaintiff, and the promise is made to such person alone ; and the question arises, Can any other person than the promisee maintain an action upon such promise, solely because he is beneficially interested in its performance ? Many cases seem to hold that he can. Is that a universal, or even a general rule ? Is not the general rule the other way ? If A. sends a present to B. by an express-man and pays him double price upon his promise to deliver the article promptly, can B. recover damages for the carrier's non-performance of that contract .'* A perfect, well rounded contract requires not only a promise and a consideration, but a participation by each party in both of these elements. Possibly a privity as to only one might not always be fatal, though even this is doubtful ; but a want of privity as to both the promise and the consideration certainly seems to be an insuperable obstacle to an acti'on, upon the strict principles of the common law. If no other reason existed, the fact that the person who furnished the consideration, and to whom the promise was made, could always maintain an action upon it, seems to be a sufifi- 31