Page:Harvard Law Review Volume 8.djvu/115

99 RIGHT TO SUE UPON A CONTRACT. 99 had acquired from a lessee the use and occupation of land, and the landlord was held to be entitled to the rent agreed upon with the lessee. Button v. Poole was one of a number of early English cases in which the relationship of the person for whose benefit the promise was made was held to give him a right to sue upon the promise. It was, moreover, a case in which an heir of an estate had induced his father not to cut down timber in order to raise a portion for his sister upon a promise to pay the sister Jier portion; and the court held that the son, having had the benefit of the timber, was subject to an action by his sister and her husband for ^he money he had agreed to pay to her. The sister had lost her portion by reason of the promise of the defendant, and was in that sense a party to the consideration of the agreement made with her father for her benefit. The court, however, said, " It might be another case if the money had been to have been paid to a stranger, but there is such a nearness of relation between the father and child, and 't is a kind of debt to the child to be provided for, that the plaintiff is plainly concerned." ^ On the hearing of the case upon writ of error, the argument for the plaintiff was that " The action was maintainable by the party to whom the promise was made or to the cestuy que use. The promise was made indiffer- ently;" and of this opinion were all the justices and barons.^ Whatever the ground of the decision may have been, the result was an equitable one, and Lord Mansfield, who looked chiefly to such results, said in Martin v. Hind,^ " It is difficult to conceive how a doubt could be entertained in Dutton v. Poole." The decision, however, rests upon the same ground as that in Rookwood's Case,* where the younger sons were allowed to bring an action for the amount the heir had promised the father he would pay to them if the father would charge their portions upon the land. The land was subject to an equitable charge, and the consideration for the promise really came from the plaintiffs. There is an old case referred to in Bourne v. Mason,* as Sprat v. Agar, in the K. B. i Cro. 619, in which the nearness of the relation is said to give the plaintiff the benefit of the consideration of a promise made to another. It was the case of a promise to a phy- sician to give money to his daughter in case he effected a certain 1 Button V. Poole, i Vent. 318, 332 ; 2 Levinz, 211 ; T. Jones, 102. ' Dutton z*.- Poole, Raym. 302.
 * I Cowp. 437 ; I Doug. 142. 6 I Ventris, 6.
 * Cro. Eliz. 164.