
    Samuel Arnold and Others versus Erastus Lyman
    
      A, a debtor of B, conveys property to C, who, in consideration thereof engages in writing to pay certain debts of A, and particularly that which he owes to B. —It was holden that C was liable to B, for the amount of A’s debt to him in an action of assumpsit.
    
    This was an action of assumpsit, founded upon the following agreement, subscribed by the defendant, viz., “ Whereas Hezekiah Hutchins hath this day assigned, transferred, made over and sold to me, certain notes, accounts, demands, goods, wares, and merchandise, as per invoice and schedule annexed; with full authority to collect, receive and make sale of them to my own use; now therefore, in consideration of the premises, I do hereby promise and engage to assume and pay the following demands against the said Hutchins, as follows, to wit,-also one note to Samuel Arnold for two hundred and thirty-seven dollars,-and to save the said Hezekiah harmless from all costs and expenses on account thereof. In witness * whereof,” &c. There was also a [ * 401 ] count for money had and received.
    On the trial which was had upon the general issue before Jackson, J., at the last April term at Taunton, it appeared that on the 18th of October, 1815, the said Hutchins, a citizen of the county of Hampshire, was indebted, in the sum of 237 dollars, 79 cents, to the plaintiffs, who were citizens of Rhode Island, doing business in company, under the firm of “ The Country Manufacturing Company; ” and he then, by his agent, gave to said company his note for that sum, payable in four months from said date. On the 21st of June, 1816, the said agreement was made between Hutchins and the defendant. The goods and effects therein mentioned were then delivered to the defendant by Hutchins, with a schedule or inventory thereof; but no inventory was preserved by Hutchins, and none was produced at the trial.
    When the note was given to the plaintiffs, Arnold was the agent of the said company; and the agent of Hutchins could not recollect whether the note was made payable to Arnold, or to the plaintiffs by their said name or firm ; but he knew that it was given to Arnold, as the agent of the company. It did not appear that there was any other note due from Hutchins to Arnold, or to the plaintiffs; and it was not disputed that the note before mentioned was the same that was mentioned in the above agreement, as the note to Samuel Arnold for two hundred and thirty-seven dollars.
    On these facts the judge directed a verdict for the plaintiffs for the amount due on said note; subject to the opinion of the whole Court on the question whether the plaintiffs were entitled to recover in this action ; and the verdict was to be confirmed, or altered ; or to be set aside, and a verdict entered for the defendant, according to the opinion of the Court.
    
      W. Baylies, for the defendant.
    The evidence does not support the declaration. To sustain the count for money [ * 402 ] * had and received, the defendant must actually have received money . This is a general principle: it is for the plaintiff to point out the exception, if there be any, that will embrace his case.
    In the special count, it is stated that the promise was made to the plaintiffs, when in fact it was made to Hutchins. “ If the promise be made to a third person, for the benefit of the plaintiff, the declaration must state it to have been made according to the fact ”  ; and so appears to have been the declaration in the case of Dutton vs. Poole 
      , as cited in Buller's N. P. 133.
    Further, the note described in the declaration, and produced at the trial, does not correspond with that mentioned in the agreement between Hutchins and the defendant; and there is no averment that they are the same.
    But the plaintiffs are not entitled to recover, independently of these objections. The written agreement is the foundation of the action. To that agreement they are not parties. The promise is to Hutchins. It is, in effect, an undertaking by the defendant to indemnify him. The consideration moved entirely from Hutchins. The plaintiffs are strangers to the consideration, and can therefore maintain no action .
    The action of Jackson vs. Mayo & Al., Ex’rs 
      , was on a promise by the testator, to account with the plaintiff’s daughter for money received of the plaintiff. The husband of the daughter was held a competent witness, upon the ground, it is presumed, that the daughter had no interest in the contract.
    The plaintiffs may, perhaps, rely on a dictum in 1 Chitty on Pleading, 5, as an authority against the position now taken for the defendant. It is there stated that, when a contract not under seal is made with A, to pay B a sum of money, B may sustain an action in his own name. But several of the cases, there referred to, have been examined, and do not support the principle, as thus broadly laid down. It is unquestionably true, as a general rule, that * no person can maintain an action upon an agreement [ * 403 ] to which he is not a party. This rule, it is acknowledged, admits of exceptions. If a contract be made with an agent oi attorney, the principal may sue in his own name. If money is delivered by A to B, for the purpose of being paid over to C, this latter may maintain an action against B for the money. The person to whom the promise is to be performed (though not the party contracted with), being the meritorious cause of it, can take advantage of the promise. These, it is apprehended, are all the material exceptions, that can fairly be deduced from the adjudged cases. The present action, it is contended, is within the rule, and not within any of the exceptions.
    
      Cozzens, for the plaintiffs.
    It was very early settled that, where A delivers money to B, to be paid to C, an action for money had and received lies for A 
      . So if goods are delivered in like manner to one person, to be delivered to another, the latter may sustain an action for the recovery of them .
    
      But it was also long since fully established that, where a written contract, not under seal, is made with A, to pay B a sum of money, B may maintain an action upon it in his own name . The reason given in many of the cases referred to, is the nearness of the relationship between the parties. But there does not seem to be much meaning in this reason; and there are several cases to which it does not apply, besides those in which it has been held, that an action for money had and received will lie, and which seem to settle the principle .
    In law the promise is to the plaintiffs, and it is always correct to declare according to the legal effect of a contract . Dawes, 97, . is to the same purport, although cited for the defendant to show that the declaration should have alleged the promise to be made to Hutchins. Indeed, how can the plaintiff recover in assumpsit, unless he alleges a promise to himself? The declaration in [ * 404 ] Dutton vs. Poole, although * it stated all the facts, must also have drawn the inference from those facts, and alleged a promise to the plaintiff.
    
      Hutchins may be considered as the agent of the plaintiffs, making the contract in their behalf; and their subsequent ratification of his acts is equivalent to an antecedent authority . This principle obtains even in the case of a conveyance of real estate . In truth, the promise in the case at bar is not in terms to Hutchins. The defendant in the contract acknowledges the receipt of the consideration from him, and then “ promises and engages ” generally, “ to assume and pay ” the note to the plaintiffs.
    The justice and equity of this case is clearly with the plaintiffs. Hutchins being insolvent, if he should recover the money, the plaintiffs would have no security for it; and for this reason alone a court of equity would not decree the money to be paid to him, without security that it should be paid to the plaintiffs .
    If, then, the plaintiffs fail of supporting their action, they will probably lose a just debt. To the defendant, it must be indifferent whether he pays the money to the plaintiffs or to Hutchins. He must pay it to one or the other.
    
      
       1 Chitty on Pleading, 341.—3 B. P. 559, Whitwell vs Bennett.
      
    
    
      
      
        Lattes on Pleading in Mssumpsit, 97.
    
    
      
       1 Vent. 318
    
    
      
       1 Selwin’s N. P. 45.—1 Str. 592, Crow vs. Rogers.—1 Vin. Abr. 334, Clifford vs. Berry.—2 Lev. 11, Norris vs. Pine.—1 Roll. Abr. 30.
    
    
      
       11 Mass. Rep. 147.
    
    
      
       1 Crunch, 428, and the cases there cited.—3 Cranch, 495.— Com. Dig. Action of Assumpsit, E.—2 Com. on Contracts, 566.
    
    
      
      
        Bac. Air. Actions on the Case, A.
      
    
    
      
      
        1 Cranch, 429.—1 Chitty on Pleading, 5.—1 Johns. 140.—1 B. Sp P. 101, note.— 2 L. Raym. 28.— Yelv. 25.-8 D. & E. 571.—1 Vent. 318, 332, Dutton vs. Poole T. Jones, 101, S. C.—Bull. N. P. 133, 134.—10 Mass. Rep. 287.
    
    
      
      
        Cowp. 437, Martya vs. Hurd, Hetl. 177—1 Vin. Abr. 334.
    
    
      
       15 Mass. Rep. 290.—10 Mass. Rep. 230.—9 Mass. Rep. 526.
    
    
      
       10 Mass. Rep. 230.
    
    
      
       12 Mass. Rep. 456.
    
    
      
       7 Cranch, 71.
    
   Parker, C. J.,

delivered the opinion of the Court.

There was a sufficient consideration for the promise. The goods of Hutchins, which in his hands were liable for his debts, were transferred to the defendant, and put into his possession. This transfer might have been avoided by the creditors of Hutchins; but there is no evidence that the possession of the defendant has ever been distuibed. The promise, founded on this consideration, was not made to Hutchins; although, without doubt, he could have maintained an action upon the contract, had he been sued upon any of the notes, which the defendant undertook to pay.

But we think also that the promise may be legally considered as made to the several creditors, whose debts the defendant undertook to pay, if they choose to avail themselves of his engagement. The promise was to pay certain particular debts; and there seems to be no reason why * it should not be treated as [ * 405 ] a promise to the creditors. It being in writing, and there being a sufficient consideration, it is no objection that it is a promise to pay the debt of another. The promise being not to Hutchins expressly, but general in its form, the assent of the creditors made them parties to the promise; and this assent is sufficiently proved, as respects the plaintiffs, by their bringing an action upon the contract. Generally he for whose interest a promise is made, may maintain an action upon it, although the promise be made to another, and not to him. Com. Dig. Action upon the Case upon Assumpsit, E.

The facts in the case sufficiently show that the note of hand given to Arnold was the property of the plaintiffs, he being their agent; and it was in fact delivered to him, as the agent of the plaintiffs .

Judgment on the verdict. 
      
       [Vide Hall vs. Marston, post, 575.—Dumond vs. Carpenter, 3 Johns. 183 Raymond vs. Bernard, 12 Johns. 276.—Chapman vs. Williams, 7 Har. & Johns. 157.— Tindlay vs. Adams, 2 Can. Rep. 369.—Goodridge Al. vs. Lord, 10 Mass. 487.—Ed.]
     