Page:Harvard Law Review Volume 8.djvu/113

97 RIGHT TO SUE UPON A CONTRACT. gy recognized, sjus qiicBsitum tertio, a right intended to inure to the benefit of the third person; ^ and in some of those American cases in which the rule has been laid down that a stranger to a contract has a right to sue upon it, the rule has been in fact limited to cases in which the promisor and the promisee have both intended to secure the benefit to a third person, and in which also there has been some relation or obligation between the promisee and the party to be benefited which would give the latter some legal or equitable claim to the benefit of the promise.^ It was such cases as this that gave rise to the rule, and although it is usually laid down in more ^ general terms, it would be hard to find actual decisions in which the limitations did not exist. It would carry us beyond the limits assigned to this article to examine all the cases and to see under what circumstances the rule is applied, and how far the actual decisions support the rule in its broadest form. The cases are collected and arranged by States in an article in the "American Law Register," for September, 1890;^ there is a thoughtful discussion of the subject with references to the cases in the " American Law Review," for April, 1881,* and the question is examined with especial reference to the New Jersey cases in the " New Jersey Law Journal," for July and August, 1881.^ It was pointed out by Judge Metcalf, in 1854, that the earlier cases in which the rule was declared did not warrant the assertion that the old rule of the common law had been changed, but that they were either cases like the old case of Button v. Poole,^ in which the liability was based on the relationship of the parties, or cases of the use and occupation of land, like Brewer v. Dyer, then recently decided in Massachusetts,'^ or else cases of indebitatus as- sf^mpsit (or money had and received, in which the action, " being an equitable one, can be supported by showing that the defendant has in his hands money which in equity and good conscience belongs 1 Per Lord Cranworth in the case just quoted. 2 Vrooman v. Turner, 69 N. Y. 280. 8 29 Am. Law Reg. (ist series), 596, Note to Grant v. Diebold Safe & Lock Co., by Ernest Watts. ^ 4 N. J. Law Journal, 197, 229. Article by Edward Q. Keasbey. See also note to Casey v. Miller, i Am. Law Reg. & Rev. (n. s.) 20, on " What Promises to Pay the Debt of another are within the Statute of Frauds." 7 7 Cush. 337 (1851).
 * Am Law. Rev. 231. Article by Henry O. Taylor.
 * I Ventris, 318; 2 Levinz, 211.