Page:Harvard Law Review Volume 9.djvu/264

236 HARVARD LAW REVIEW, " We do not propose to enter at large upon the consideration of the inquiry how far privity of contract between a plaintiff and de- fendant is necessary to the maintenance of an action of assump- sit. The subject has been much debated, and the decisions are not all reconcilable. No doubt the general rule is that such a privity must exist. . But there are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where, under a contract between two persons, assets have come to the promisor's hands or under his control which in equity belong to a third person. In such a case it is held that the third person may sue in his own name. But then the suit is founded rather on the implied undertaking the law raises from the possession of the assets, than on the express promise. Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or deliver some valuable thing to a third. But where a debt already 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 liability to pay it (there being no nova- tion), 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. There are some other exceptions recognized, but they are unimportant now. The plaintiff's case is within none of them. Nor is he sole beneficiary of the contract between the association and the Grand Lodge. The contract was made, as we have said, for the benefit of the association, and if enforceable at all, is enforceable by it." So where the defendant had agreed to deliver certain goods to A., and A. gave him a written order to deliver the goods to B., and the defendant accepted the order and returned it to A., who gave it to B. as collateral security on a debt, it was held B. could not main- tain an action against the defendant on the order and acceptance, for he furnished no consideration for it, and the contract was with A. and not with B.^ It is for the same reason, among others, that the payee and holder of a check on a bank cannot maintain an action on a promise made by the bank to the drawer of the check, to pay all ^ Rogers v. Union Stone Co., 130 Mass. 581; Morse v, Adams, Id. 585 (1881).