
    George H. Meyer et al., Pl’ffs, v. Lena Stitz et al., Def'ts.
    
      (City Court of New York, Trial Term,
    
    
      Filed March 24, 1890.)
    
    Release—Promise by stranger.
    One 0. promised plaintiffs that if they would release their claim against defendants he would lift the balance of the account. Plaintiff assented to this, but no release was executed. Held, that there was no accord, release or extinguishment of the debt.
    The answer admits the debt sued upon, which is for merchandise, and pleads in defense a release and discharge. The evidence to prove the alleged release is a conversation sworn to by -«-oh F. Cullman (a stranger to the record), in which Cullman v. ^«orge Meyer, one of the plaintiffs, “If you will release your _ against the defendants,” he (Cullman) would “liftthe balance ojl ' merchandise account ” owing by the defendants. Cullman testified that Meyer assented to this. No release was ever executed. The defendants were not present at the conversation and were not parties in a legal sense to the arrangement. The court directed a verdict in favor of the plaintiffs and the defendaiits move for a new trial.
    
      S. W. Weiss, for motion; R. M. Henry, opposed.
   McAdam, Ch. J.

The elementary writers agree that, m general, persons who are not parties to a contract have no concern with it. Bishop on Con., § 716; 1 Hilliard on Con., 422. The position so often found in the books that where a promise is made to one for the benefit of another, he for whose benefit it was made may bring an action for the breach of it, has to a large extent ceased to be the law in England, Metcalf on Con., 205, and Chitty says it is now clearly settled that a mere stranger to the consideration can not enforce performance of the contract by an action thereon in his own name, although he be the party avowedly intended to be benefited thereby. Chitty on Con., 11th Am. ed., 74. The principle has also been somewhat modified in this country.

The exception to the rule, as stated, seems to be that an action of assumpsit for money had and received (a sort of equitable action) will lie whenever the defendant has in his hands money which in equity and good conscience belongs to the plaintiff. Cases of relationship also formed an exception, but it has ceased to be such. Tweddle v. Atkinson, 1 B. & S., 393. The doctrine of Lawrence v. Fox, 20 N. Y., 268, does not apply. All that ,case decides is “ that where one person loans money to another upon his promise to pay it to a third party, to whom the person so lending the money is indebted, the contract thus made by the lender is for the benefit of his creditor, and the latter can maintain an action upon it without proving an express promise to himself from the party receiving the money.” Garnsey v. Rogers, 47 N. Y., 233 ; see also Wheat v. Rice, 97 id., 296; Serviss v. McDonnell, 9 Cent. R., 841; Berry v. Brown, id., 896. Indeed, Cullman could have exonerated the plaintiffs from any obligation that might have disabled them from suing the defendants. No money was paid and no release executed, and the contract relation of “ releasor and releasee ” was never formed in the sense applicable to the defendants’ plea, nor were they in a legal sense parties or privies to the arrangement which is claimed to have extinguished the debt. The defendants have not been injured to any extent by any act of the plaintiffs, nor have the plaintiffs been benefited by any act of the defendants or of anyone on their behalf. If Cullman has suffered any inconvenience, he must seek his appropriate remedy for it. Even in Lawrence v. Fox, supra, the party receiving the money was treated as an agent of the person for whom he assumed to act, and in this way was treated as privy to the agreement to pay over. In this case the plaintiffs received nothing to pay over, and there was nothing given to Cullman to pay over. There was no agency created by the transaction or proved to have been conferred outside of it. In fact, so far as the proof discloses, the defendants did not know of the transaction said to have operated as a release, until they interposed their plea setting it up. There was no accord with or without satisfaction, and no release or extinguishment of the debt in suit.

The verdict was properly directed and the motion for a new trial must be denied, but without costs.  