Page:Harvard Law Review Volume 9.djvu/542

514 514 HARVARD LAW REVIEW. ties of which I speak, and yet the matter is strikingly simple. For the purpose of making my point I shall risk a charge of digression in order to analyze that case. A gave money to B with instructions to pay it to C. In Law- rence V. Fox it was held that C could recover from B in an action on contract.^ The decision was of course wrong. It assimilated the relation between B and C to the ordinary relation between parties to a simple agreement; whereas the fact was that B had made no promise to C, and had received no consideration /r^//^ him. These are the two essential elements of a contract at common law, and both were lacking. On the other hand, B, by accepting the money from A on the conditions prescribed, did create a valid obligation, consensual in its nature and running directly to C. The difficulty is to obtain recognition for it in the courts of common law. They have enforced similar consensual obligations which are not refer- able to any class of contracts in only two instances that I have been able to call to mind, and those two instances are cases of special actions on the custom of merchants, allowed in deference to an overwhelming commercial necessity. They are actions by the payee of a bill of exchange against the acceptor (an action by the payee of a check against the bank on which it is drawn would be substantially the same thing) and actions against an insurance company by the beneficiary of a policy of insurance other than the one who pays the premiums and takes out the insurance. Courts of equity, however, have had no difficulty in similar cases. Nothing is more common than a bill whereby the beneficiary of a trust, other than the original grantor, endeavors to enforce the trust obligation against the trustee. In these three cases there need be no promise made to the plaintiff or consideration received from him. What a court of equity can do, a court of law, so far as its limited remedial powers will permit, should have no difficulty in doing. It should allow an action by C against B for money had and received, not on the ground of unjust enrichment, but as the common law analogue of a bill against a trustee. The doubts and obscurities associated with all these cases would have been readily avoided, if their true character had been recog- nized. They are cases of trilateral relations, in which the obligor 1 The point has since been made, that in the actual transaction A was indebted to C. Though that fact is used in New York to limit the scope of Lawrence v. Fox, it is not now material and I have consequently neglected it.