Sec 507

"We have just seen that the party from whom the consideration proceeds must be the party to sue for the equivalent of such consideration, though when the contract is made by an agent, he may sue either in his own or in his principal's name. We have next to observe that a party cannot recover unless on a duty assumed to himself. "When two persons for valuable consideration between themselves covenant to do some act for the benefit of a mere stranger, that stranger has not a right to enforce the covenant against the two, although each one might as against the other."1 "No one can be made a debtor for money paid, unless it was paid at his request."2 "A debtor cannot discharge his liability to his creditor by seeking some person whom his creditor happens to owe and paying his debt to him."3 That to entitle a person to sue on a contract, not only must he be, as was just seen,' beneficially interested in the contract, but he must be a party to the contract, is, as we will hereafter see more fully, a settled principle of the English common law.4 Much conflict of opinion, however, exists in this country on the question whether a party for whose benefit a contract is made, but who is not a party to it, can sue on such contract. - If a credit is obtained by my agent or trustee, there is no question of my right to sue on it, although I knew nothing of the transaction at the time, and was not even known to the party who thus became my debtor.5 But suppose that a deposit was made to my credit by a stranger, without notice to me. In such case I am not, by the English common law, entitled to bring suit on the deposit which is thus made in my name until I am notified by the depositary, and adopt the deposit as for my use, he agreeing with me, on sufficient consideration, to hold the deposit for me.1 There must be, to entitle an alleged creditor to sue, a prior recognition by the creditor of the indebtedness as part of an agreement either express or implied by him with the debtor, that the debtor is to hold for the benefit of the creditor.2 On the other hand, as will be hereafter seen more fully, the rule in most states in this country is, that a person for whose benefit a contract was made is not precluded from suing on it by the fact that he is not a party to it.3 - It is worth considering, however, whether our relaxation in this respect of the strictness of the common-law principle is wise. The increasing complexity of our civilization makes it each day the more important to maintain the principle that without privity of contract there can be no contractual relation. It is not likely, in fact, that money will be deposited by a volunteer to my credit, or work done for me, unless for some sinister purpose. I may be a capitalist or a politician, and it may be an object of importance to the party so volunteering to rank me as co-operating in his schemes, or to subject me to him by the ties of gratitude. The true principle is that to establish a contractual relation there must be the consent, express or implied, of the contracting parties. Even supposing that work is done for me or goods supplied to me from motives of disinterested kindness, there are strong reasons why this should not be permitted to sustain a suit. (1) Disinterested kindness would cease to exist if it gave a legal claim against the party to whom it is shown. (2) Every man must be left to determine what service he needs in his household, what comfort he requires, what investments he will make. It may be a matter of true charity to supply service or goods to another; but to assert that A. has a right to supply his neighbors with what they need and then exact payment makes A. the master of every family with which he may meddle. In conformity with this view, it has been held that voluntary aid given in securing lost property does not support an action against the party aided;1 nor does aid in saving property from fire.2 - On this topic the Roman law takes a different position, it being held in that law, that when aid is given in extremity in relief of an absent person, the party relieving can recover compensation afterwards from the party relieved.3 No such system of agency, however, is recognized in our jurisprudence. The only exception is that of salvage; it being part of the maritime law that compensation may be obtained for services rendered in saving property from marine loss or from piracy.4 - Another question to be considered in this connection is, whether a consideration is sufficient of which the party setting it up was not aware at the time he did the act for which he sues. A reward, for instance, is offered for certain services; and a party does this service unconscious of the reward. Can he afterwards recover in a suit on the reward ? It has been held in New York that he cannot, there being no contract between the parties.5 On the other hand, a party who undertakes to do a particular thing without the knowl-

Party cannot recover unless on duty assumed to himself.

1 Langdale, M. R., Colyear v. Mul-grave, 2 Keen, 98; see Piercy ex parte, L. R. 9 Ch. 33; Tweddle v. Atkinson, 1 B. & S. 393; see Segars v. Segars, 71 Me. 530; Stoddard v. Ham, 129 Mass. 383; Biery v. Ziegler, 93 Penn. St. 367.

2 Curtis v. Parks, 55 Cal. 106; S. P., Anderson p. Hamilton, 25 Penn. St. 75.

3 Van Fleet, V. C, Receiver, etc. v. First Nat. Bk., 34 N. J. Eq. 457. That A. by paying C.'s debt cannot make himself C.'s creditor, see Patillo v. Smith, 61 Ga. 265.

4 See infra, sec 784 et seq.

5 Wh. on Agency, sec 4, 5, 147, 398; infra, sec 723 et seq., 784 et seq.

1 Williams v. Everest, 14 East, 582; Tweddle v. Atkinson, 1 B. & S. 393; Thomas v. Thomas, 2 Q. B. 857; Mandeville v. Welch, 5 Wheat. 277; Hinkley v. Fowler, 15 Me. 285; Gibson v. Cooke, 20 Pick. 18; Brewer v. Dyer, 7 Cush. 337; Exchange Bank v. Rice, 107 Mass. 37; Hind v. Holdship, 2 Watts, 104; Beers v. Robinson, 9 Barr, 229; Page v. Becker, 31 Mo. 466; Fithian v. Monks, 43 Mo. 503; and cases cited infra, sec 784 et seq. In an early Massachusetts case, Felton v. Dickinson, 10 Mass. 287, it was held that a son can maintain an action on a contract made for his benefit with his father. See, also, Felch v. Taylor, 13 Pick. 136;.

Arnold v. Lyman, 17 Mass. 400. The advance in this direction was subsequently checked; and it has been held that on a promise made to the seller by the buyer of an equity of redemption, to secure and cancel the mortgage with the note for which it was given, no action lies by the mortgagee. Mellen v. Whipple, 1 Gray, 317.

2 Infra, sec 784; Cobb v. Becke, 6 Q. B. 930; Barlow v. Browne, 16 M. & W. 126; Tweddle v. Atkinson, 1 B. & S. 393; Bigelow v. Davis, 16 Barb. 561. As to novation, see infra, sec 852; whether members of an association can sue as a committee, see infra, sec 808.

3 Infra, sec 785.

1 Nicholson v. Chapman, 2 H. Bl. 254; Binsteed v. Buck, 2 W. Bl. 1117.

2 Bartholomew v. Jackson, 20 Johns. 28.

3 Wh. on Agency, sec 358.

4 Abb. on Ship, part 4, ch. 12; Chase v. Corcoran, 106 Mass. 286, where it was held, that a party claiming and obtaining a boat lost in the water was entitled to recover from the party who brought it to shore the necessary expenses of preserving the boat.

5 Fitch v. Snedaker, 38 N. Y. 248. In Williams v. Carwardine, 4 B. & Ad. 621, apparently contra, it does not appear that the party doing the service was ignorant of the reward, though influenced by other motives in doing the service; see Pollock, 3d ed. 12, 19; Leake, 2d ed. 24; and see cases cited supra, sec 24.

510.] edge that any other persons will act upon his undertaking, and without inviting other persons so to act, is not liable on his undertaking.1.