
    JOHNSTON’S CASE.
    Thomas Johnston v. The United States.
    
      On the Proofs.
    
    
      An Indian agent purchases a thrashing-machine of .one O'Keefe, who admits an indebtedness to the claimant and directs payment to him. The agent issues a voucher to him in his, the claimant’s, name. Subsequently O’Keefe revolees the authority. The claimant brings suit on the voucher.
    
    I. An authority given by the vendor of an article at the time of sale to pay tlie purchase-money to a third person, to whom he is indebted, may be revoked at any time before payment; and then no action can be maintained by the third person ag'ainst the vendee.
    II. An Indian agent purchasing an article is without authority of law to issue a voucher for the purchase-money to a third person at the vendor’s request, made at the time of sale.
    III. One who is in legal effect merely the assignee of a claim against the Government cannot maintain an action upon it, though he holds an official voucher for it issued to him in his own name.
    
      The Reporters’ statement of the ease:
    This cáse was tried at the preceding term and the facts were found by the coirnt. , A reargument upon the' facts found was subsequently ordered, which was heard at the present term.
    The following are the facts found:
    I. The threshing-machine described in the petition was purchased by the defendants’ Indian agent of one C. C. O’Keefe, in whom title and possession then were. .
    II. At the time of the purchase O’Keefe admitted a present indebtedness then existing from himself to the claimant, the amount whereof is not shown, and, in the presence of the claimant, directed tbe Indian agent to pay- the purchase-money to him.
    III. After delivery of the machine by O’Keefe' the Indian agent issued the voucher set up in the petition to the claimant. Before payment, O’Keefe denied and revoked the direction to pay the claimant; and the purchase-mpney has not been paid to any person.
    
      
      Mr. B. JP. Grafton for tlie claimant:
    The facts found by the court constitute an original tripartite agreement between the United States, the claimant, and 0. 0. O’Keefe. They do not constitute either a novation or a u promise to answer for the debt, default, or miscarriage of another.”
    * An agreement between A, B, and C, that B shall sell his horse to A and A shall pay the price to C, is a valid original agreement. If as between B and 0 there is a valid consideration for this contract, then even as between them the contract is in all things and everywhere final and obligatory. If, however, there is no valid consideration as between B and 0, nevertheless the contract being three sided, and providing for payment not to B, but to 0, is as between A and each of the other parties absolutely binding. The question of consideration as between B and 0 does not affect the rights or obligations of these parties as between themselves and A. Those rights and obligations are absolutely fixed by the contract. It is of no possible consequence to A what they were. He has promised to pay C and has not promised to pay any one else. The promise which he has made, and not the promise which he has not made, is to be enforced.
    The contract between the United States, the claimant, and O’Keefe would have been absolutely binding as between the Government and each of the other parties, even if there had been no valid consideration as between the claimant and O’Keefe. But there was such valid consideration. It consisted of O’Keefe’s indebtedness to the claimant; and the result of the agreement was to discharge that indebtedness to the extent to which the moneys payable for the property purchased by the Government would satisfy it. And while it is true, as a matter of fact, that the promise of the Government to pay Johnston operated as an extinguishment pro tanto of the indebtedness of O’Keefe to Johnston, that fact is wholly immaterial to the validity of the promise by the Government.
    This is not a case of novation. If A owes B and B owes 0, an agreement of the three that A shall owe C, B dropping entirely out of the case both as the creditor of A and the debtor of G, then the case becomes one of novation. But there must be two original debts, one from A to B and another from B to 0, and the novation consists in the substitution for both of these old debts of a new indebtedness from A directly to 0.
    
      Tn tbe case at bar there ivas never any indebtedness from tbe Government to O’Keefe. Tbe contract for tbe purchase of tbe property was tbe first transaction between tbe Government and O’Keefe, and tbe original agreement between all tbe parties was that tbe money should be paid, not to O’Keefe, but to Johnston. But, then, if it could be regarded as a case of novation it would be a valid novation; for not only is there a valid consideration as between O’Keefe and tbe Government and as between O’Keefe and tbe claimant, but tbe claimant’s demand against O’Keefe was discharged so far as tbe-price of tbe machine sufficed for that purpose.
    That tbe facts of tbe case as found by tbe court do not constitute a “ promise to answer for tbe debt, default, or miscarriage of another ” is very plain. In tbe first place, wherever the main purpose and object of tbe promise is not to answer for another, but to subserve some purpose of bis own, bis promise is not within tbe statute, although it may be in form a promise to pay tbe debt of another, and although tbe performance of it may incidentally have tbe effect of extinguishing tbe liability of another. In tbe second place, a promise by A to answer for tbe debt of B to 0 is collateral, not an independent undertaking; it is a guarantee by A of B’s debt to 0, not a promise by A to pay bis own debt to 0; it is a promisé by A to pay 0 if B does not, and not an absolute promise by A to pay 0. Tbe payment of O’Keefe’s debt to Johnston was not tbe main purpose and object of tbe Government in this transaction, but its main purpose and object were to subserve a purpose of its own, that is, to procure by purchase a thrashing-machine for tbe public use; and tbe undertaking of tbe Government in this case was not collateral to O’Keefe’s promise in favor of Johnston, was not a guarantee of O’Keefe’s debt to Johnston, was not a promise by tbe Government to pay Johnston if O’Keefe did not, but was an absolute promise by tbe Government to pay Johnston tbe price of tbe property purchased by tbe Government. Tbe following-principles of law are applicable to the. case:
    It was said by Shaw, 0. J., in delivering tbe opinion of tbe court in Nelson v. Boynton (3 Met., Mass., 396), that—
    “The terms original and collateral promise, though not used in tbe statute, are convenient enough to distinguish between tbe cases where tbe direct and leading object of tbe promise is to become tbe surety or guarantor of another’s debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading effect of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing ; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promiser.’7 (See also Alger v. Sco-ville, 1 Gray, 391; Dyer v. Gilson, 16 Wis., 557; Stephen Mount, v. Lalceman, L. R, 7 Q. B., 196.)
    In Williams y. Leper (3 Burr., 1886), Taylor, a tenant to the plaintiff, being in arrear for rent and insolvent, conveyed all his effects for the benefit of his creditors. He employed the defendant as a broker to sell the effects, and accordingly he advertised a sale. On the morning of the sale, the plaintiff came to distrain the goods in the house; whereupon the defendant promised to pay the arrear of rent if he would desist from distrain-ing ; and he did thereupon desist. Upon these facts the court held that the defendant’s promise was not within the statute. To the same effect is Houlditch v. Milne (3 Esp., 86.) There the plaintiff had in his possession certain carriages belonging to one Copey, upon which he had a lien for repairs. The defendant, in consideration that the plaintiff would relinquish his lien and give up the carriages to him, promised to pay the plaintiff the amount due him. And Lord Eldon held the case to be out of the statute, on the principle established by Williams v. Leper. (See also JBarrett v. Trussell, 4 Taunt., 117; Slingerlmd v. Morse, 7 Johns., 463 5 Hindman v. Langford, 3 Strob., S. C., 207 ; Blount v. Hawlcins, 19 Ala., 100; Allen v. Thompson, 10 N. H., 32; Handle v. Harris, 6 Yerg, Miss., 508.)
    Lithe case of Curtís v. Brown (5 Cush., Mass., 488,492) Shaw, C. J., who delivered the opinion of the coimt, says: “ When by the new promise the old debt is extinguished, the promise is not within the statute; it is not then a promise to pay the debt of another which has accrued, but it is an original contract, on good consideration, and need not be in writing.” (See also Bird v. Gammon, 3 Bing., N. C., 883; Buteher v. Stewart, 11 Mee. and W., 857; Deeleer v. Shaffer, 3 Ind., 187; Bmericlc v. Sanders, 1 Wis., 77; DraughanY. Bunting, Ired., N. C., 10; Stanley v. Hen-dióles, 13 Ired., N. C., 86; Bason v. Hughart, 2 Tex., 476.)
    
      But if tbe court bad merely found that tbe government bad bought tbe machine from O’Keefe, and,.without tbe knowledge or presence of Johnston promised to pay tbe price to Johnston, while that state of facts would have been far less favorable to tbe claimant than tbe facts actually found, nevertheless it would have constituted a perfect basis for this demand. In the case of Farley v. Cleveland (9 Oowen C39), Aybere Moon owed Farley and sold to Cleveland a quantity of bay, in consideration of which Cleveland promised to pay Moon’s debt to Farley, tbe court held that Farley could recover, and placed bis right to recover on the ground that the hay received by Cleveland from Moon was a valid consideration for Cleveland’s promise to pay Farley, and that the subsisting liability of Moon to pay Farley was no objection to tbe recovery. This case has often been referred to and has never been doubted, as a sound authority for tbe principle by it upheld. (Barlcer v. Bualclin, 2 Denio, 45; Hudson Camal y. Winchester Bank, iid., 97.)
    In 1606, tbe Supreme Court of New'York decided that where one person makes a promise to another for tbe benefit of a third person, that thud person may maintain an action upon it. (Scher-merhorn v. Yanderheyden, 1 Johns., 140.) Tbe same principle has been adjudged in a number of cases in Massachusetts. In Hall v. Marston, the court say:
    “ It seems to have been well settled that if A promises B, for a valuable consideration, to pay C, tbe latter may maintain assump-sit for tbe monéy.”
    In Breioer v. Dyer (7 Cush., 337), tbe court say:
    “ Upon tbe principle of lav long recognized and clearly established, that when oneperson, for a valuable consideration, engages with another by a simple contract to do some act for tbe benefit of a third, the latter, who would enjoy tbe benefit of the act, may maintain an action for tbe breach of such engagement; that it does not rest, upon tbe ground oí any actual or supposed relationship between tbe parties, as some of tbe earlier cases would seem to indicate, but upon the broader and more satisfactory basis, that tbe law, operating on the act of the parties, creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded.” (See also Baiorence v. Fox, 20 N. Y., 268, and cases there cited.)
    Tbe doctrine of Baiorence v. Fox was unanimously reaffirmed in Burr v. Buss, 24 N. Y., 178, and it remains tbe rule of decisions in eases of tlie class there decided. (Mcard v. Sanderson, 41 N. Y., 179; Breemcm v. Auld, 44 id., 55; Hutchins v. Miner, 4C id., 456; Garnsey v. Rogers, 47 id., 233; IMmJc v. Bank, 46 id., 82; Barlow v. Myers, 04 id., 41; Hodges v. Bastman, 12 Vt., 358.)
    ilír. A. N. Robinson (with whom was the Assistant Attorney-General) for the defendants:
    This transaction must be considered either under the head of novation or a promise to pay the debt of another. If a novation, then claimant should have then and there promised and agreed that his debt was discharged. If a promise to pay the debt to claimant, then it is void by the statute of frauds of Montana, which says: “ In the following cases, any agreement shall be void unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged thereunto. Second, every special promise to answer for the debt, or default, or miscarriage of another.” (Laws of Montana, 393.) Nothing of this kind was done here.
   Drake, Oh. J.,

delivered the opinion of the court :

D. Shanahan, an Indian agent of the Government, purchased of one C. C. O’Keefe a thrashing-machine for $800 for the farm-service of his agency.

At the time of the purchase O’Keefe admitted a present indebtedness then existing from himself to the claimant, the amount of which does not appear, and in the presence of the claimant directed Shanahan to pay the pm’chase-money to him.

After delivery of the machine by O’Keefe, the agent issued the voucher annexed to the petition, and which is as follows:

“The United States to T. Johnston, Hr.
“1873.
“Octo. 20. For one threshing-machine, complete, furnished for the farm-service of the Flathead Indian agency ..$800 00
“I certify, on honor, that the above account is correct and just; that the threshing-machine was actually furnished as stated; that the exigencies of the sendee did not admij; of the delay incident to advertising; tbat it was purchased at tbe lowest attainable rate; tbat no part of tbis account bas been paid, and tbat there is due to T. Johnson tbe sum of eight hundred dollars ($800).
“D. SHANAHAN,
UU. S. Indian Agent.

Before payment of tbis voucher, O’Keefe revoked tbe direction to pay tbe claimant, and tbe purchase-money bas not been paid to any one.

Tbe single question arising on tbe case as thus presented is, whether tbe claimant bas a legal cause of action upon a u contract, expressed or implied, with tbe Government of tbe United States.”

Tbe claimant’s petition avers tbat he sold and delivered tbe thrashing-machine to tbe Indian agent and received therefor tbe voucher, and tbat tbe Indian agent promised on behalf of tbe United States tbat tbe United States would pay tbe claimant for tbe machine tbe sum of $800.

Were tbe case of tbat character, there would not probably have been any occasion for tbis suit, for tbe voucher would doubtless have been long ago paid at tbe Treasury; but tbe fact as found is, tbat tbe claimant did not sell tbe machine to tbe Indian agent, but it was sold to tbe agent by O’Keefe, who directed tbe agent to pay tbe purchase-money to tbe claimant, to whom tbe voucher was issued.

A voucher issued by an officer of tbe Government is only prima-facie evidence of tbe Government’s indebtedness, which may be rebutted by proof tbat it was issued without an actual indebtedness to sustain it. It is an official misconduct in any officer to issue a voucher of tbe Government’s indebtedness to any other than tbe party whose property was purchased or whose services were rendered for tbe Government. There can, therefore, be no recovery here under tbe voucher, for it was falsely issued to one who bad not sold tbe machine, and between whom and tbe Government there was, therefore, no contract of sale.

■ It is contended, however, tbat O’Keefe’s direction to tbe agent to pay tbe money to tbe claimant authorizes tbe latter to recover in tbis action. But there are insuperable objections to tbis view:

1. Supposing tbat tbe agent was officially authorized to act upon such a direction, it was a mere naked authority, which O’Keefe had a right to revoke at any time before payment was actually made, and which he did, in fact, revoke, and so ended the authority.

2. Under no circumstances could the claimant hold the United States, in virtue of that authority, unless the United States, through some legally authorized officer, agreed to pay the money to him. We have looked in vain for any authority in this Indian agent to enter into any such agreement on behalf of the Government. There was, therefore, no agreement.

3. If the claimant has any right whatever to this money, it is only as O’Keefe’s assignee; and since tlie decision of the Supreme Court at its present term, in United States v. Gillis (95 U. S. E., 407), it is settled law that no assignee of a claim against the United States, claiming under an assignment by the act of the Government’s creditor, can sue on the claim in this court.

In no view can this suit be maintained; and the petition is dismissed.

Nott, J.,

dissenting:

Privity between the parties and a consideration for the promise are necessary to support an action in assumpsit; and, ordinarily, there must be u either an immediate benefit to the party promising or a loss to the person to whom the promise was made,” to constitute a consideration. In this case there was no direct privity between the present parties, the claimant and defendants, for the sale was not by the claimant, but by another, in whom the title and possession of the purchased property were, and no consideration passed from .the claimant either to the defendants or to the vendor to support the promise declared upon. If the defendants had paid the purchase-money to the claimant before the vendor’s revocation, unquestionabíyit would have been a imyment by appointment, discharging the debt; or if it appeared that the claimant at the time and as a part of the transaction. had parted with a valuable .consideration to the vendor or had relinquished his debt, the law would imply that he did so at the request of the purchaser, and the consideration would import a privity of contract between them and be as effectual as though it bad passéd directly to tbe defendants. But bere nothing' appears to bare passed from or been relin-quisbed by tbe claimant. He paid nothing to vendor nor to vendee; be did not discharge tbe pre-existing debt; be did not even suspend bis right of action upon it. Immediately after tbe transaction be was as free to bring a suit against tbe vendor as before. He wholly fails to show that be did anything or refrained from doing anything in consequence of tbe transaction; and before suit brought upon tbe tripartite agreement, if such it were, tbe vendor revoked tbe authority to pay tbe purchase-money to the claimant, and asserted a right to recover it himself. Nevertheless, there is an exceptional class of cases which uphold similar transactions between three persons, but they are so involved and contradictory as to require a somewhat extended examination of the law.

The controlling facts of the case, stated in a word, are these: The defendants hold in their hands money, viz, the purchase-money of the threshing-machine bought by them; the vendor at the time of sale directed that this money should be paid to his creditor then present, viz, the claimant; and the defendants, in consideration of the sale, promised and agreed so to pay it, viz, by the voucher issued to the claimant-on the receipt of the purchased property. The resulting question is, whether this consideration moving from the vendor to the defendants, coupled with his request and their promise to pay the purchase-money to their vendor’s creditor the claimant established such privity in law as will enable him to maintain an action against them on their promise.

The earliest decision upon this subject is Dutton v. Poole (1 Vent. 318). A father, designing to raise a marriage portion for his daughter, forbore to cut certain timber for that purpose in consideration of the defendant’s agreeing that he would pay to the daughter £1,000. He failing to pay, she brought her action against him, setting up his promise and alleging the transaction with her father as a consideration to support it. The court held that the action would lié, but said, -‘It might be another case if the money had been to have been paid to a stranger.” Manifestly the doubt suggested went to the equitable interest of the daughter in the transaction; for the only effect that the relation of parent and child could have on the case was in giving the daughter the same moral claim for her marriage portion, that a creditor would have for the payment of a pre-existing debt.

Fifty years later a caséis reported in Strange (Crow v. Rogers, 1 Strange, 592), where the doctrine of Button v. Boole was overruled, and it was held that an action would not he, because the plaintiff was a stranger to the transaction.

At a still later day the case in Ventris seems to have been remembered and the case in Strange overlooked. Mr. Justice Buffer (1 Bos. & Pul., 101., note b; 3 id,., 147, Day’s ed., note a, p. 149); Lord Loughborough (Israel v. Douglas, 1 H. Blacks., 239); Lord Mansfield (Hawkes v. Saunders, 1 Cowp., 290), and Lord Tenterden (2 Dow. & Ry., 277), are all recorded as holding in effect that “if one person make a promise to another for the benefit of a third, that third may maintain an action upon it.”

Lord Mansfield, in Hawkes v. Saunders (1 Cowp., 290), states with characteristic clearness and strength the principle upon which the decisions rest. “The rule laid down at the bar” “ goes upon a very narrow ground indeed, namely: that, to make a consideration to support an assumpsit, there must be either an immediate benefit to the partly promising or a loss to the person to whom the promise was made. I cannot agree to that being the only ground of consideration sufficient to raise an as-sumpsit. A legal or equitable duty is a sufficient consideration for an actual promise. When aman is under amoral obligation, which no court of law or equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.”

Later still, the English courts traveled back toward the primitive idea of privity and consideration, that the third person must give a consideration if he would make obligatory the promise; that to bind the others, he must be bound himself. (3 Barn. & Cres., 591; 4 id., 163; 4 Barn. & Adol., 433; 5 Adol. & Ellis, 548).

The obscure condition of the law in England on this point is illustrated by the fact that in Chitty’s Pleadings (vol. 1, p. 5), it is stated one way — 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 ”; and in Ohitty, jun., on Contracts (ed. 1842, p. 53), it is stated the other — that it is now a rule of law that the consideration for a promise must move from the plaintiff.

Lathe courts of New York and Massachusetts, on the contrary, the subject has been carefully examined; and learned opinions have been given both for and against the principle of upholding in these tripartite agreements a constructive privity, based upon a moral consideration.

The leading case in New York (thoiigh not the first) is Farley v. Cleveland (4 Cow. 432), a case closely resembling the one now before ns, except that there was no revocation by the original debtor, the vendor of the propert3. It ivas agreed that A should deliver hay of the value of $150 to 23, and that B should pay A’s note for $100, then due in the hands of C. A carried out his portion of the arrangement and shortly after absconded and left the State. B, finding that there would be little likelihood of his vendor vexing him, refused to pay 0, and hoped thereby to escape payment altogether. C, finding that his only practicable recourse was against B, brought his action, to which B answered that there was no privity between them, and that C had given no consideration to support the promise which he set up. The Supreme Court of New York held that the consideration moving to the defendant (the hay) was sufficient to support the action, and the Court of Errors, though without an opinion, affirmed the judgment. (9 Cow., 639.)

Again, the subject came up in the case of Lawlcer v. Buclclin (2 Denio, 45), a case precisely like the one now before us, and a very learned judge, Mr. Justice Jewett, very fully examined all the authorities that could be found, both adjudged cases and elementary works, and came to the same conclusion, that “ where one person makes a promise to another for the benefit of a third, the third may maintain an action upon it, though the consideration does not move from him.”

This conclusion has hardly been questioned in New York, but in Lawrence v. Fox (20 N. Y., 268) the Court of Appeals carried it much further than it had gone before, which involved a division in the court, and called out a very able and searching-dissenting opinion from Mr. Justice Comstock. Up to that time the New York cases had presented actual agreements between three persons, and in every case the future plaintiff had been one of the agreeing parties; but in Lawrence v. Fox he knew nothing of the arrangement between the other two, and was a stranger in fact, if not in law, to the transaction made for his benefit. The Court of Appeals, however, pushed the doctrine far enough to cover his case, and held that he cotdd adopt the agreement of the other two and maintain an action.

In Hutchings v. Minor (46 N. Y. 456) the same court carried the doctrine till further, and held not only that “where A, for a valid consideration, promises B to pay 0, 0 may maintain an action on the promise, though not privy to the consideration,” but also that, “if no direct promise was made” by A, yet if B “made the request and laid the duty upon him and he did not decline,” “his consent is to be presumed and is equivalent to an express promise.” The decision in Lawrence v. Fox moreover, though made by a divided court, was reaffirmed in Burr v. Burr (24 N. Y. 178), and has been regarded as sound law in a number of subsequent cases. .

The Supreme Court of Massachusetts laid down the same rule at an early day (Goodwin v. Gilbert, 9 Mass. 510), and it has been reiterated in a number of cases. The most notable of these decisions are that of Chief Justice Parker, in Arnold v. Lyman (17 id., 400); that of Mr. Justice Bigelow, in Brewer v. Dyer (7 Cush., 340); that of Chief Justice Shaw, in Carnegie v. Morrison, 2 Metc., 381), and that of Mr. Justice Metcalf, in Mellen v. Whipple (1 Gray, 317).

In Brewer v. Dyer (7 Cush., 340) Mr. Justice Bigelow holds that where there is some property or thing in the hands of the defendant which should be applied to the demand of the plaintiff, the party does not recover so much upon the express promise as “upon the broader and more satisfactory basis that the law operating on the act of the x>arties creates the duty, establishes the privity, and implies the promise.” In Carnegie v. Morrison (2 Metc., 381) Chief Justice Shaw fully examines the question, and adoxits the old case in Yentris (Dutton v. Pool) as good law. In Mellen v. Whipple (1 Gray, 317) the court, unlike the New York Court of Appeals, evinces a strong determination to carry the doctrine of constructive x>rivity no further than previous Massachusetts decisions require; but Mr. Justice Metcalf) in a very clear opinion, classifies to a certain extent the former cases, and brings such cases as the claimant’s within the established classes.

Parsons, after a brief statement of the conflicting American and English decisions, sums up the.matter by saying, “In this country the right of a third x>arty to bring an action on a promise made to another, for his benefit, seems to be somewhat more positively asserted $ and we think it would be safe to consider this a prevailing rule with us.” (1 Parsons’s Contracts, 467.) Nevertheless, I should be inclined to regard the question as still an open one in the Federal courts, were'-it not that the Supreme Court, in Tiernan v. Jackson (5 Peters, 579, 598), cited with approval the cases in Bosanqnet & Puller and one of the New York decisions (Schemerhorn v. Vanclerheyden, 1 Johns., 139), and said: “The case of Farmer v. Russell (1 Bos. & Pul., 296), so far as the point before us is concerned, asserts the principle that if A receive money from B to pay to C, it is money had and received for the use of the latter.” (The head-note to Farmer v. Bussell, it may be noted, reads as follows: “If A receive money of B to the irse of C, it may be recovered by C-in an action for money had and received, though the consideration on which B paid it be illegal.”) And the Supreme Court also declared the principle to be this: that “the receipt of the money for the use of a particular person necessarily imported a promise or obligation to hold it in privity for such person.”

There is, however, an element of difference between the claimants case and those hereinbefore referred to which deserves notice. In this case the vendor of the property revoked, so far as he could, the authority to the defendants to pay the purchase-money to the claimant, and this revocation was made before the suit was brought. In not one of thp numerous'cases which I have examined does this element of revocation appear. In all of them the attempt to evade the tripartite agreement was entirely on the part of the defendant, who, so far as the cases disclose, held money which the vendor wished paid to the plaintiff. There is, indeed one case in the New York reports (Kelly v. Roberts, 40 N. Y., 434, 441) which was sought to be brought under the rule of Lawrence ¶. Fox, where A, a creditor, told B, his debtor, to pay C, to whom he owed money, and afterward revoked the authority. But there no present consideration passed between A and B, nor was C a party to the agreement, nor did he give his assent to it; and the case manifestly, as the court points out, would not come under the decisions, apart from any question of revocation. The transaction was nudum pactum between all the parties and bound none.

There is a seeming failure of obligation on the defendants here to pay the claimant when the vendor bids them not to do so; yet if the reasoning of Mr. Justice Bigelow, in Brewer v. Dyer (7 Cush., 340), that “the law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise,” is sound, it is impossible to hold that one of the parties, at his option, can shake off the duty, destroy the privity, and annul the promise. A privity once legally established continues until the transaction out of which it springs is consummated. Assuredly, what the law established as a binding contract between the three parties to the transaction could not be rescinded at the will of one or two of them. Won constat but that the third person, the claimant here, had some lien upon the property transferred, which he .might have asserted in equity. Won constat but that he might have attached it for his own debt owing from the vendor; certainly the third person in such cases is morally prevented by the arrangement from exercising the diligence against the original debtor which he might otherwise have exercised; evidently the principal debtor might gain time by such an arrangement, and having gained it, turn around and put his creditor to the further delay and cost of a suit at law. The rule is founded on equity and sound morality; it is designed to prevent needless litigation and circuity of action; and if it can be maintained at the common law, it cannot be frustrated or evaded by any one to whom it is applicable.

Under these American decisions an ordinary defendant would be held to have money in his hands which ex aequo et bono he should pay to the claimant. There are decisions of the Supreme Court which hold that an action as for money had and received will lie against the Government, as against an ordinary party, where money has been paid into the Treasury, which ex cequo et bono the claimant should recover back. La Peyre’s Case (8 C. Cls. R., 165); Worton Case; Boston Bcmlcs Gases (post). I kuow of no statute which forbids the agents of the Government from dealing with two men instead of one, nor from agreeing to pay for things purchased in the way the vendor requested and the contract prescribed.

My first impressions in this case were decidedly against the claimant $ but I reach a favorable conclusion now, after a careful examination of all the authorities I have been able to find, and I come to this conclusion with the less reluctance, because the defendants have the right to review it in the Supreme Court, which the claimant has not.

Peck, J., was absent when the case was decided, but agreed in the above conclusion that the claimant should recover.  