Page:Harvard Law Review Volume 8.djvu/119

103 RIGHT TO SUE UPON A CONTRACT. I03 In Tvveddle v. Atkinson,^ the question was distinctly raised whether one for whose benefit an express promise was made might bring an action upon it if he were a stranger to the consideration. It was, like Button v, Poole, the case of a promise made by a father for the benefit of his child. After a marriage, the fathers of a husband and wife agreed together each to pay a sum of money to the husband, and they also agreed that they should have the right to sue for the parties at law. It was nevertheless decided that the husband had not a right of action. Crompton, J., said : " It is admitted that the plaintiff cannot succeed unless the case is an exception to the well-established doctrine of the action of assumpsit. Modern cases have overruled the old decisions. They show that the consideration must move from the party entitled to sue upon the contract. It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued." This is the established law in England to-day, and the same rule is distinctly declared by many courts of the American States, as it was expressed in the decision of Judge Gray in Massachusetts.^ In other States, however, the courts, in deciding cases that came within the classes referred to by Judge Metcalf (cases of money had and received, or in which there was a trust or a right to an accounting), have referred to the old cases, and declared that it had been decided that if one make a promise to another for the benefit of a third, the latter may maintain an action upon it. Button V. Poole, and the language of Lord Holt have been quoted by one court after another as authority to this proposition ; and Mr. Parsons, in his work on Contracts,^ referring to Button v. Poole and to early cases in Massachusetts and Pennsylvania, and some others, said the rule was more positively asserted in this country, and that it might be safe to consider it the prevailing rule with us. After this Mr. Parsons himself was referred to as authority, and it has been frequently declared to be " well settled as a general rule that in cases of simple contracts, if one person makes a promise for the benefit of a third, the third may maintain 288, 8th Am., from 8th Eng. ed. See also Howell v. Batt, 5 B. & Ad. 504 (1833) ; Baron V. Husband, 4 B. & Ad. 611 (1833). 1 I B. & S. 393. 2 Exchange Bank of St. Louis v. Rice, 107 Mass., quoted above.
 * I Pars, on Cont. 467.