
    BELT vs. McLAUGHLIN TO THE USE OF JOHN COTTON.
    If A,' for a valuable consideration, makes a promise to B for tho benefit of C, in such case 1st. C may maintain an action in his own name upon the promise, or 2d. B may sue Upon it for thé use and benefit of C;
    APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    Statement of the case;
    This was an action of assumpsit. The first count states a balance due by the defendant to Ihc plaintiff, on the sale of the steam boat Tioga. The second count states ¡hat the defendant agreed that in consideration the plaintiff would sell the said boattotlie defendant, the defendant agreed that he would pay all claims and demands lor which said boat had been sued in St. Louis county, and for which the plaintiff, as owner, was then and there liable, and that plaintiff did sell and deliver said boat to the defendant; and that at the time of said sale the plaintiff was indebted to John Cotton in the sum of §250; and that Cotton, before that time, had instituted suit against said boat for said demand, which was pending in the St. Louis circuit court, and that defendant undertook to pay tho plaintiff the amount of the demand of the said Cotton, and that the amount so due Cotton, was part and parcel of the sum agreed to be paid by the defendant to the plaintiff; and that defendant was then and there credited with said amount, as cash ; breach— that the defendant had not paid the plaintiff or Cotton.- The common counts were added. On the trial of tho case the defendant proved that the steam boat Tioga was indebted in the sum of §111 60, to the said Cotton for wages as pilot on said boat. The plaintiff then gave in evidence, the record and proceedings in the case of John Cotton vs. steam boat Tioga, in the St. Louis circuit court for the debt due by said boat to said Cotton, which said suit was dismissed by the court because the affidavit was insufficient. The plaintiff' then gave evidence tending to prove that there were liens on said boat; that the boat was attached, and offered for sale, but that she was not sold, because tho defendant took the boat and agreed to pay the debts of the boats, and all the claims against her. This was in tho fall of 1845, and the boat was then delivered to the ■defendants.
    The defendant then produced an instrument between one Mallory and McLaughlin, dated Septem* ber 13tli 3845, stating that us McLaughlin had made to said Mallory a bill of sale of said boat, that Mallory would re-convey to the plaintiff said boat, if the plaintiff paid the claims and demands against said boat.
    On the 27th October 1845, McLaughlin assigned this instrument to one McLean, and on the 27th Nov. 1845, McLean transferred the same to Belt. This mstrumont and assignments were all under seal.
    On the 30th October 1845, the sheriff sold said boat to defendant, in virtue of an order of sale under a judgment in favor of J. & W. Finney vs. said boat, and executed a bill of sale.
    
    H. B. Belt was then called by defendant, who testified that he conducted the negotiation for the said boat, on the part of the defendant, that the purchase of said boat was made of McLean and not of McLaughlin ; that there was no negotiation with McLaughlin, and no promise to him, unless the agreement of McLean and defendant, that defendant should take the boat as she stood subj'ect to the liens upon her, and that was the only contract. That at the time of the sale neither McLane nor McLaughlin were present; thinks the claim of Cotton was in the hands of the sheriff at the time spoken of; that he was acting as deputy sheriff^ and that the sale was not made for the reason that defendant took the boat and agreed to pay the liens against her.
    The plaintiff recalled George Keys, who testified, that the sale was made to Mallory, to secure witness against liability as security for said boat; that McLaughlin was considered as the owner, and never heard McLean mentioned in relation to the sale of said boat; that McLaughlin was about the boat up to about the time the boat was sold.
    The court then gave the following instructions, to which defendant excepted. “ If the jury believe from the evidence that the defendant agreed with McLaughlin to pay the debts of the Steam boat Tioga, and received said boat in consideration of said agreement, they should find for the plaintiff, provided they find from the evidence there was a debt due from the boat, and McLaughlin as owner thereof, to Cotton.’’
    “ That if defendant made a general promise to pay the debts of the boat, that such promise would enure to the benefit of the owners at the time the debts were contracted, if in consideration thereof he got the boat.”
    The defendant then asked the following instructions, which the court refused, to which refusal defendant excepted.
    “ That if no contract was made between McLaughlin and the defendant as to paying the debts of the steam buat Tioga, the jury will find for the defendant.’’
    “ That although the jury should believe from the evidence that defendant agreed with Washington McLean to pay the debts of the Tioga, such agreement would not make the defendant liable in this action.”
    The defendant filed his motion for a new trial, which was refused, to which refusal defendant excepted, and brings the case to this court by appeal.
    Crockett, & Briggs, & Whittlesey, for appellant.
    1st. The court erred in giving the instructions asked for by plaintiff, asid in refusing those asked for by defendant, for this reason, that the benefit of the promise, if any such was made by the defendant, enured to the creditors of the boat, and not to the owners. Robbins vs. Ayres 10 Mo. Rep. 538; Bank vs. Hackney 10 lb. 519, 524. It was a promise to A by B for a consideration moving from C, and two parties cannot have an action against a third for the same identical cause of action at one and the same time. The court therefore erred in giving the first instruction asked by the plaintiff, for the promise was not to pay McLaughlin the monoy, but to pay the debts of the boat, and the suit should have been brought in the name of Cotton. Besides, if McLaughlin might have sued tho defendant because ho did not pay the debts of the boat, he might sue in a separate action for every debt that the defendant neglected to p;nT, and thus there might be several suits for one and tire same cause of action, to wit: the neglect to pay the debts of the boat. For the same reason the court erred in giving the second instruction asked by the plaintiff, and in refusing the second instruction asked by the defendant. The party in whom is the legal interest, must sue, and McLaughlin had-not that interest in defendant’s promise. 1 Chit. PI. 1, 2, 4, 5.
    Besides the verdict was against evidence. The promise proved on the trial was to McLean if to any body, for he had the interest in the boat subject to the payment of the debts, as appears from the writing or instrument offered in evidence, and the assignment thereof from McLaughlin to McLean. After McLaughlin’s assignment to McLean, the plaintiff had no interest in the boat. The court therefore erred in refusing the first instruction asked by the defendant.
    And for the errors committed by said court, its judgment should be reversed.
    1st. The plaintiff has no right to sue on the promise of the defendant, because he had no interest in it.
    2d. The promise did not enure to the plaintiff but to Cotton, who should have sued upon it, and can still sue upon it, if it was a valid and legal claim against the defendant on his promise to pay the debts of the boat, as the legal interest was in Cotton.
    3d. The verdict was against evidence, the weight of evidence and the-law.
    Hudson, for appellee insists r
    1st. The agreement set out in the declaration siiows a good and sufficient consideration for the promise. It is manifest from the evidence that Cotton had a good cause of action against the steamer “ Tioga’’ as well as against McLaughlin the owner ; that he had commenced proceedings against said boat under our statute, and the boat was in the custody of the sheriff and advertised for sale to satisfy the claim of Colton ond others, which were lions on the boat. The sale would have taken placo and the claims paid, but for the influence of Bolt the appellant, who by an express agreement undertook and promised, that if the sheriff would stop the sale he would pay all the claims against the “ Tioga.’’ The sheriff did not sell. Belt, under his promise, obtained possession and control of the boat, and subsequently paid most of the demands against the boat, pursuant to his agreement. In the ease of Smith vs. Weed 20 Wend’. 184, the court held that the release of a lien obtained by the issuance of an attachment is a good consideration for a promise to a third person to pay the debt of the party proceeded against by such process. It will not be denied that the obtaining possession of property taken under-attachment, or by virtue of a warrant under our statute relative to boats and vessels is a good and sufficient consideration to sustain a promise.
    2d. An actlawful in itself which is for the benefit of one party or to the prejudice of another,, constitutes a sufficient consideration to support a promise. 3 Scorn. Rep. 329. It is manifest that the act of Belt in obtaining possession of the boat was to his advantage and to the prejudice of both McL., & C. It is clear that the boat Would have been sold, and for an amount sufficient to have paid all the claims against her, but for the fact that Belt expressly agreed to pay them—had tire sale taken placo all the claims would have been paid—MoL. would have been released from any liability to Cotton, and the claim of Cotton paid without delay. The failure of Belt to comply, with the agreement was to the prejudice of McL. and also to C. 5- Stanton 450; 2 East. 325.
    3d. When one person has voluntarily received a benefit from another, or has been the causo (without sufficient excuse) of loss to another, there arises a moral obligation to compensate him for the benefit secured or- loss sustained, and the law will enforce the duty. In this case it is not denied that the steam boat “ Tioga’’ was liable to Cotton ; he had alien on the boat’and would have enforced it, but for the undertaking of Belt—he prevented the sale in consequence of which Cotton’s claim was not paid, It is clear that McL. to the extent of Cotton’s cltim was prejudiced, and Bolt to a like extent benefited, and should be held responsible to the extent of the benefit received, See 9 Shopiey 475. This authority will be found in 22 Maine Rep. 475.
    4th. A promise by one person to do an act for the benefit of a third, isa sufficient consideration to support an action against the person promising. 1 Cain’s Rep. 45. So the ^--of a legal right at the request of another is a good consideration to support a promise by law. 2 N. H. Rep. 97; lb. 352.
    5th. With respect to the certainty of the parties necessary in describing the promise in special assumpsit, it must appear who made the promise, and to whom it was made, though it is not necessary that it should appear to have been made to the plaintiff, for in some cases one man may main, tain an action upon a promise made to another, if it be to do a thing for his benefit, or tile party to whom the promise was made may sustain the action. Lawes on PI. 88.
    6th. When a promise is made for the benefit of theplaintiff it matters not to whom the promise was made, and either he or the promisee may maintain the action, and where the act is promised to be done to or for the benefit of the plaintiff, it may be intended that the promise was made to him. Lawes PI. 91.
    7th. Tho conduct of Belt according to the testimony of the witnesses, was inconsistent with strict integrity and fair dealing: ho has reaped the benefit of McL.’s property without paying for it, and now seeks to avoid judgment even after his express undertaking to discharge this and other demands. The only questions of fact in the case were submitted to the jury, and they have found in favor of tho plaintiff below. From all that appears on tho record, judgment was given for the right party, and it is not now important to enquire whether the court of common pleas committed an error or not. If justice has been done, this court will not disturb the judgment below. 7 Mo, Rep. 419.
    8th. Judgment will not bo arrested, because the declaration is defective, if it has substance sufficient to found a judgment on after verdict. Reily 170.
    9th. When a promise ie made to A for the benefit of B, and an action brought by B, the promise must be Jaid as being jpade to the latter, and the promise actually made to A may be given in evidence to support the declaration. Lawes on PI. 88-9; 1 Bos. & Pul. 101; Cowp. 443; 12 John Rep. 276.
    10th. Where an improper judgment produces the proper result, it will not be reversed. 3 Stew. 38.
   Judge Birch

delivered the opinion of the court.

Adopting, in this case, the statement agreed upon, by the counsel, and the jury having found, from the evidence, under proper instructions from the court, that the defendant agreed with McLaughlin to pay the debts of the steamer Tioga,” and receive the boat in consideration thereof--and that there was a debt due from the boat and McLaughlin as owner, to the plaintiff—the only question remaining for the consideration of this court, since its repeated reaffirmance of the principle of liabilty recognised in the case of Robbins vs. Ayres (10. Mo. Rep. 538) has reference to the party who was entitled to sue.

In one of the earliest treaties on pleading, Lawes 88-91, it is laid down that in cases similar to the present, there should be an option as to the party who might make himself the plaintiff; and as the other authorities and cases to which we have been, referred, present at the most but an unsatisfactory conflict of opinion and decision, the point should b.e. ruled for the plaintiff

The judgment of the court of common pleas is, therefore, affirmed.  