Page:Harvard Law Review Volume 8.djvu/109

93 RIGHT TO SUE UPON A CONTRACT. 93 THE RIGHT OF A THIRD PERSON TO SUE UPON A CONTRACT MADE FOR HIS BENEFIT. TO ask a question with regard to the right of a third person to bring a suit upon a contract suggests that there are two others whose rights are not in doubt. The use of the words " third per- son " (and they are those that naturally suggest themselves), im- »plies that we admit that the contract is between two others, and that the third is a stranger. The rights acquired under a contract belong naturally to those who make it and to their assigns. The question suggested is whether a stranger may bring an action upon a contract made between others for his benefit. The idea of a con- tract is an agreement between parties giving rights to one against the other, and the elements of a contract upon which an action may be maintained at common law are, the agreement, the parties, and the consideration ; and it is well settled as an old rule of law that the parties to a contract not under seal are the persons between whom the consideration moves. It is clear, therefore, that it is only between the parties that all the elements of a common-law contract exist, and that as a general rule the persons to bring suit upon a contract are the parties to the agreement and to the consideration. It was said in an English case in 1861 that there were some old cases to the effect that a stranger to a contract may maintain an action upon it if he stand in such a relation to the contracting party that it may be said that the contract was made for his benefit, but that no modern case could be found in support of such an excep- tion to the general rule.^ The rule is distinctly laid down in the best English text-books,^ and no such exception is admitted to exist. In this country, on the other hand, many cases have been decided on what is declared to be " the broad principle that, if one person make a promise to another for the benefit of a third person, that third person may maintain an action upon it ; " ^ and in the Supreme Court of the United States Mr. Justice Davis said in 1 Tweddle v. Atkinson, i B. & S. 393. 8 Per Denio, J., in Burr v. Beers, 24 N. Y. 178. 13
 * Leake on Contracts, 222 ; Dicey on Parties, 82 ; i Addison on Contracts, *26.