
    Henry R. Mosser et al., Trading as Mosser & Sadler, Plffs. in Err., v. William M. Donaldson.
    A landowner and a builder entered into a written contract for the erection of a building on the former’s land, wherein it was provided that “the party of the second part (the builder) shall keep the said building at all times fully insured against fire, for the benefit of whom it may concern; and in case of loss the indemnity shall be divided between the parties hereto, according to their respective interests in the property destroyed.” The builder insured the building accordingly. Plaintiffs furnished the builder material upon the credit of the building. A loss having occurred, the insurance money was paid to the landowner (the policy having been assigned to him by the builder), and the plaintiffs sued him for so much thereof as would satisfy their claim. Held, that the expression, “for the benefit of whom it may concern,” applied only to the parties to the contract; and there being no evidence that the insurance was to be for the plaintiffs’ benefit, or evidence of a subsequent promise to pay them therefrom, their action was not maintainable.
    (Argued May 31, 1887.
    Decided October 3, 1887.).
    May Term, 1887,
    No. 18,
    M. D., before GordoN, TruNeey, Clare, GreeN, and Sterrett, JJ.
    Error to tbe Common Pleas of Dauphin County to review a judgment of compulsory nonsuit in an action of assumpsit.
    Affirmed.
    In addition to tbe facts appearing in tbe opinions, it may be stated tbat Null, tbe builder, in accordance witb tbe terms of tbe contract set out in tbe opinions, on March 15, 1885, insured tbe building in bis own name in tbe sum of $4,000, against loss from any fire wbicb might occur before March 15 then next ensuing. A fire did occur on February 16, 1886, resulting in a total loss; and soon afterwards Null assigned tbe policy to Donaldson, tbe owner of tbe building. Shortly after that, in March, 1886, $3,690, tbe full amount of tbe policy, witb 1 per cent off for prompt payment, was paid to Donaldson. He refused to pay the claim of tbe plaintiffs, admitted to be $955.84, or any part of it; hence this suit.
    On tbe trial tbe plaintiffs offered to prove by II. R. Mosser, one of tbe plaintiffs:
    “Tbat during tbe time tbe lumber in suit was being furnished for tbe defendant’s bouse, witness bad two or more interviews with tbe defendant, at wbicb be expressed bimself dissatisfied with tbe fact that Null bad paid only $300 on tbe lumber, and requested witness to keep bim informed of tbe delivery of materials, and payments therefor from time to time, wbicb tbe witness did; and tbe defendant promised to let tbe witness know when be, tbe defendant, would make the next payment to Null, and did let bim know accordingly, at wbicb time tbe defendant paid Null $1,000 and insisted that Null should out of this pay tbe witness (plaintiff) $700; and be gave as a reason for this that be was liable to have a mechanics’ lien against bis bouse for whatever remained unpaid, wbicb be did not want, and would not have, and that be would look out for that. This for tbe purpose of showing tbe defendant’s admitted liability for the price of the lumber, so far as not paid for by Null, and to show legal grounds for an implied promise to pay for tbe same.”
    This offer tbe court rejected, and gave tbe plaintiffs an exception. (First assignment of error.)
    Tbe plaintiffs further offered to prove: “That the building in question having been insured for $4,000, in pursuance of tbe contract with Donaldson, tbe plaintiffs were thereby deprived of tbe power to insure, or otherwise they might have been able to secure themselves; and this for tbe purpose of showing a privity between tbe plaintiffs and tbe defendant, and also to lay legal grounds for an implied assumpsit.”
    This offer tbe court also rejected, and gave plaintiffs an excep: tion. (Second assignment of error.)
    The plaintiffs rested; and thereupon, on motion of defendant’s counsel, the court ordered a compulsory nonsuit, with leave to tbe plaintiffs to move to take it off. Tbe same day a motion to take off tbe nonsuit was filed by plaintiffs, with reasons. This motion was subsequently overruled, and this writ was taken by tbe plaintiffs, specifying tbe above assignments of error; and (3) that tbe court erred in entering tbe compulsory nonsuit; and (4) that tbe court erred in refusing to take off the compulsory nonsuit.
    Tbe opinion of tbe court below, on entry of nonsuit, was as follows:
    This action is brought by Messrs. Mosser & Sadler against tbe defendant, to recover certain money wbicb tbe plaintiffs declare the defendant has in bis bands, under a promise, expressed or implied, to devote a portion of it to tbeir claim. Tbe facts wbicb aro not disputed are briefly these: Mr. Null made a contract with Mr. Donaldson to erect a building for him. That contract was in writing, and contains this clause t
    “The said party of the second part shall keep the said building at all times fully insured against fire for the benefit of whom it may concern; and in case of loss the indemnity shall be divided between the parties hereto, according to their respective interests in the property destroyed.”
    Subsequently Mr. Null ordered a good deal of material for this building from the plaintiffs, and that material was furnished upon the credit of the building. For the property thus furnished the plaintiffs had an undoubted right to file a mechanics’ lien. Whether or not they also had a right to maintain an action against Mr. Donaldson, and to hold him personally responsible for it, is a question which in our judgment does not arise in this action, which is not brought to enforce his personal responsibility for the property furnished. It is expressly brought, and has been expressly so stated, to recover the insurance money received by the defendant — money which is said to be impressed with a trust in favor of the plaintiffs. It is manifest, therefore, that the case turns upon the construction of the contract, and really upon the construction of the clause quoted.
    As we construe that clause, it gives no such right to the plaintiffs as is claimed. It concerns merely the respective interests of Messrs, Null and. Donaldson, and provides what is to be done for the protection of these interests alone; and as there is no evidence, either in the contract or outside of it, that this insurance was to be for the benefit of the plaintiffs, and no evidence of any subsequent promise to apply the money in whole or in part to pay the plaintiffs for the materials furnished, we think the case has not been made out. We, therefore, enter a compulsory nonsuit; and the plaintiffs have leave to move to take it off.
    The opinion, on refusing to take off nonsuit, was as follows:
    Dpon the trial, the plaintiffs expressly limited their claim to a portion of the money received by the defendant as proceeds of the insurance upon his burned building, and founded it upon the following clause in the building contract between the defendant .and Null, the builder:
    “The said (Null) shall keep the said building at all times fully insured against fire, for the benefit of whom it may concern ; and in case of loss, the indemnity shall be divided between the parties hereto, according to their respective interest in the property destroyed.”
    They claimed to be included in the phrase, “whom it may concern,” and, to show that they were concerned, gave evidence sufficient to make out their right to a mechanics’ lien. This was enough, if the clause quoted refers to them at all, and therefore, we refused to go into the additional question of the defendant’s personal liability for the materials furnished. This suit was not brought to enforce that liability; and since the plaintiffs’ interest upon one sufficient ground was already shown it would have been a mere waste of time to show it again upon another.
    The controlling question is this: Was the clause quoted above made for the plaintiffs’ benefit ? If it was, they may sue upon it, although they are not parties to the instrument. Wynn v. Wood, 97 Pa. 216; Dreer v. Pennsylvania Go. for Ins. on Lives & G. A. 108 Pa. 226; Zell’s Appeal, 111 Pa. 532, 6 Atl. 107.
    We thought upon the trial, however, and still think, that the phrase in dispute refers to Null and Donaldson alone. Their respective interests in the building would vary from time to time, Null’s being at first exclusive, and Donaldson’s increasing gradually as the building grew, and he made the payments agreed upon.
    In our opinion, these were the only interests the parties had in view, for they immediately go on to provide that in case of loss, the indemnity shall be “divided between the parties hereto.” This is a plain declaration that the persons “whom it may concern” are “the parties hereto;” and since no provision follows that after division the proceeds are to be held by either, for the benefit of any other person, we see nothing in the agreement on which to base the plaintiffs’ claim. There is certainly no express contract to hold the proceeds in trust for the plaintiffs; and the reason for implying a contract to that effect is considerably weakened by the consideration that they could themselves have insured their interest in the building. May, Ins. 93, p. 87; note to Strong v. Manufacturers’ Ins. Co. 20 Am. Dec. 512; Stout v. City F. Ins. Co. 12 Iowa, 371, 79 Am. Dec. 539.
    They had a direct pecuniary interest which would be damaged by its destruction. Mutual F. Ins. Co. v. Wagner, 1 Sad. Pep. 66.
    
      But aside from this, the defendant was under no duty to protect them from loss; and not haying agreed to do so in fact, we think this suit cannot be maintained.
    Motion refused. Exception to plaintiffs.
    
      Hall & Jordan, for plaintiffs in error.
    The action of as-sumpsit is one of great comprehensiveness and aptitude; and in many cases the real ground of recovery is not any real or supposed consent of the defendant, but because it was his duty to restore the money to the true owner; and this duty the law will enforce by an action of assumpsit. Beeve, Dom. Bel. 80.
    The “action for money had and received can be maintained whenever one man has received or obtained the possession of money of another which ex cequo el bono he ought to pay over. There need be no privity between the parties, or promise to pay, other than the implied promise which arises from the facts. When the fact appears that one has money which he ought to pay over the law creates the privity and the promise.” Brand v. Williams, 29 Minn. 238, 13 N. W. 42, 4 Bep. 404; Wynn v. Wood, 97 Pa. 216; Thomas v. Oummiskey, 108 Pa. 354.
    Donaldson on receipt of this insurance money held it in trust for the plaintiffs, who have the right to recover it in this action of assumpsit; and “although under the evidence there may have been no express contract of indemnity, yet there was its equivalent in the form of an implied contract.” Thomas v. Oummis-key, 108 Pa. 354.
    “It is a rudimentary principle that a party may sue on a promise made on a sufficient consideration, for his use and benefit, though it be made to another and not himself.” Merriman v. Moore, 90 Pa. 78; Justice v. Tallman, 86 Pa. 147; Moody v. Wiley (¿y.) 13 Bep. 13; Emmitt v. Brophy, 42 Ohio St. 82; Bagaley v. Waters, 7 Ohio St. 359, 367; McDowell v. Laev, 35 Wis. 171; Coster v. Albany, 43 N. Y. 399, 411; Hoff’s Appeal, 24 Pa. 200, 205 ; Siter v. Morrs, 13 Pa. 218.
    “And he may sue upon such contract without a consideration passing from him to the promisor.” Moody v. Wiley (Ky.) 13 Bep. 13, and other cases cited above. See also Litchfield v. Elint, 104 N. Y. 543, 11 N. E. 58, and cases there cited.
    
      James I. Chamberlin and Wallace DeWitt, for defendant in error.
    As the plaintiffs claim under the phrase “for the benefit of whom it may concern/’ we say that independently of the limitation to the parties to the agreement the plaintiffs have not so brought themselves within the law, as laid down by this court, as to enable them to share in this fund.
    It is not enough for the plaintiffs to show that they have furnished lumber to the house; that they have a right to a mechanics’ lien and had filed it; that they had lost by the fire, and that they could not insure their interest in the company which issued the policy to Null.
    In De Bolle v. Pennsylvania Ins. Co. 4 Whart. 68, 33 Am. Dec. 38, this court says: “No one can claim the benefit of an insurance made by another for account of whom it may concern, without showing that it was the intention of the person obtaining the insurance to embrace his interest in the goods at the time of the insurance.” See also Steele v. Franldin P. Ins. Co. 1Y Pa. 298.
    The case in hand is essentially different from that of Thomas v. Oommiskey, 108 Pa. 354, upon which plaintiffs rely. In that case the insurance policies on their face showed that Thomas & Sons took them to jirotect their own goods, goods which they held in trust, and goods which they held for customers. And the supreme court says: “We may say in limine that the policies covered plaintiff’s goods.” Thomas & Sons acknowledged that they held the money in trust for the customer, by offering Cum-miskey a portion of his loss. The principles controlling the case in hand and the Cummiskey Case have nothing in common.
   Pee Cueiaii:

We concur in the opinion of the court below; hence, affirm this case.

Judgment affirmed.  