Opinion of the Court, per DANFORTH, J. will." And before us the appellant, while contending that the testator made no express promise to pay them, adopts the language of the referee and declares that "his promise was contingent on plaintiff's outliving him," adding, "his words may have held out a hope of repayment, but there was no promise." If it rested there it would be difficult for a court to hesitate in pronouncing against such designed evasion of obligation. There was in any aspect a precise representation of an intention on the part of the testator at a future time, and in a specified manner, to assume the burden of expense for those things he solicited his child's relatives to perform. By that avowed intention they were induced to act. It is immaterial that no promise in response thereto was made by them. Their conduct was a sufficient acceptance of his proposition and furnished the consideration for his undertaking. It was indeed contingent. It consisted in the doing of acts by the promisees, which, it is true, they need not have done unless they chose, but being done at the instigation of the testator, completed the contract and made the promise binding. (Coles v. Pilkington, L. R., 19 Eq. Cas. 178; Booth v. C. Rolling Mill Co., 74 N.Y. 15.) In a book of considerable antiquity, but still of authority (Doctor and Student, dialogue 2, chap. 24), after speaking of naked promises upon which no action would lie, the learned author says: "If he, to whom the promise is made, have a charge by reason of the promise, which he hath also performed, then in that case he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it." And among other illustrations it is said, "if a man say to another, marry my daughter and I will give thee twenty pounds; upon this promise an action lieth if he marry his daughter." And in this case, the author says, "he cannot discharge the promise, though he thought not to be bound thereby; for it is a good contract, and he may have quid pro quo, that is to say, the preferment of his daughter for his money." And so here the testator is bound, although he intended only to prevaricate. The books are full of cases where such contracts are sup Opinion of the Court, per DANFORTH, J. ported. Among modern ones are L'Amoreux v. Gould, (7 N. Y. 349), and Marie v. Garrison (83 id. 14). In the first it was held that where in consideration that A. would pay certain notes upon which he was an indorser, but not then charged as such, or under any obligation to pay the same, B. agrees to pay him a certain sum of money; if A. does pay the notes he furnishes a consideration for the agreement, and may enforce it against B. It is obvious that at the time the agreement was entered into there was no mutuality in the contract, because A. came under no obligation to pay; but when he did pay, the consideration was supplied and the promise attached. So in a case where an order for goods is given, it is said to be in effect an offer to purchase and the sale to be complete when they are furnished, and when one offers to supply goods for another at a certain price, he is bound by an order given in accordance with the tender. Upon the same principle a reward may be legally claimed by one complying with the conditions on which it is offered, although the promisor could sue no one for not doing the thing called for (Jones v. Phonix Bank, 8 N. Y. 228; Pierson v. Morch, 82 id. 503). And it makes no difference that the promise is to make compensation by will. At the death of the testator the consideration had been fully performed, and the promise attached. Its enforcement therefore may stand upon the principle that where one person assumes a charge, or alters his position, or does any act by reason of a promise or representation made by another, the person making the promise or representation cannot withdraw from it, but is bound by it, although he did not intend to be. Moreover in the case before us the testator did have a full quid pro quo. What he desired was that his daughter should be well cared for and educated. He wanted also that this should be done by his daughter's relatives, and to stimulate them to do that which they were in no sense bound to do, he represented or promised that provision should be made for her by will. It was as if he had said, "Take good care of her, clothe and feed her and educate her during my lifetime, and at my death she shall have from my estate a sum at least equal to the cost of all you do and Opinion of the Court, per DANFORTH, J. They performed with his He has not done the thing expend for her." He had his wish. sanction the acts which he desired. he promised to do in return, and as his death limited the time for his performance, his omission and the happening of that event constitute a breach and complete a cause of action which the law will enforce against his estate. (Jacobson v. Executors of Le Grange, 3 Johns. 199; Patterson v. Patterson, 13 id. 379.) If I am right in these conclusions there is before us a valid contract made between the testator and the several persons named, for the benefit of the plaintiff. The only remaining question is one of parties-who should bring the action for its enforcement. As she had the sole beneficial interest in the contract, it was, we think, properly brought in her name. This would seem plain enough upon principle, but it is also well established by authority. In Dutton and Wife v. Poole (2 Levinzs, 210), decided in the time of Charles II, a son promised his father, upon a consideration moving from him, to pay his daughter one thousand pounds. Upon default the daughter sued. After verdict for the plaintiff it was argued in arrest of judgment that the action should have been by the father, not the daughter, for the promise it was said was made to the father, and the daughter was neither privy' nor interested in the consideration, nothing being due to her. The court seemed to hesitate, but after more than one hearing and citation by counsel of cases pro and con, it was held in favor of the plaintiff, the chief justice saying that there was such apparent consideration of affection from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children, and the judgment then given was, on error brought, affirmed in the Exchequer Chamber. A century later Lord MANSFIELD, in Martin v. Hind (Cowper 437-443), referring to Dutton v. Poole (supra) said, "It was matter of surprise how a doubt could have arisen in that case." A few years after (1806) a similar question came before the Supreme Court of this State, in Schemerhorn v. VanderSICKELS-VOL. L. 25 Opinion of the Court, per Danforth, J. heyden (1 Johns. 139), where the facts were that in consideration of one J. C., the father of the plaintiff's wife, assigning to the defendant certain personal property, the latter promised to purchase for the daughter a cherry desk. He failed to do so, and for that breach the action was brought by the husband of the daughter, he suing in her right. It was objected that no action could be maintained by the plaintiff on the promise made to J. C.; but the court held otherwise, saying, "where one person makes a promise to another for the benefit of a third person, that third person may maintain an action on such promise," citing Dutton v. Poole (supra), and saying the same principle has since that time been repeatedly sanctioned by the decisions of the English courts. A different rule is said to prevail in those tribunals at the present time (per WIGHTMAN, J., in Tweddle v. Atkinson, 1 Best & Smith, Q. B. 393; 101 Eng. Com. Law R. 393), and there even in equity the doctrine of the earlier cases may be considered as unsettled. (Pollock's Principles of Contract, 196.) But in this State it has, I believe, been uniformly adhered to. In 1817 it seems to have been approved by Chancellor KENT. (Cumberland v. Codrington, 3 Johns. Ch. 254) The question came directly before him in 1823, and it was answered in the same way upon the principle asserted in Dutton v. Poole, (supra), and the learned chancellor held that where a father conveyed land to his son on his covenanting to pay an annuity to his mother during her widowhood, she might maintain an action on the covenant so made for her benefit (Shepard v. Shepard, 7 J. Ch. 56), and in 1845 his successor says it has been the settled law from the time of the decision of the case of Dutton v. Poole (supra), down to the then present time, that a party for whose benefit a promise is made may sue in assumpsit upon such promise, although the consideration for such promise was a consideration between the promisor and a third person. Such also was the conclusion of the late Supreme Court of this State after a full examination of the authorities in Barker v. Bucklin (2 Denio, 45). Also by the present Supreme Court in 1859 in Judson v. Gray, affirmed by this court (17 How. Opinion of the Court, per DANFORTH, J. Pr. 289). In Burr v. Beers (24 N. Y. 178), the judgment was in terms supported upon as was said, "the broad principle that if one person make a promise to another for the benefit of a third person, that third person may maintain an action on the promise," and DENIO, J., after a review of the authorities, said "We must regard the point as definitely settled so far as the courts of this State are concerned." It seems unnecessary to follow the line of authorities further. The plaintiff is within the rule. The contract upon which she sues was made for her benefit as its object. It is the doctrine of the first and last case that she may enforce it. enforce it. This conclusion is also in harmony with the general current of authority. In the Supreme Court of the United States Hendrick v. Lindsay, (93 U. S. Rep. [3 Otto] 143), it is said, "The right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country." This conclusion makes it unnecessary to consider the ground on which the court below held that a partial recovery could be had in this case. It may be conceded that if the plaintiff had not outlived the testator, no action at all would lie, for that she should, of the two, be the longest liver was one of the conditions upon which his promise was made. He died first. The condition then was fulfilled. The plaintiff is, therefore, entitled to recover of the defendants the amount found by the referee to have been paid, laid out and expended for her by her relatives, as above stated, together with interest from the death of the testator. The order of the General Term should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs. All concur, except ANDREWS, J., who dissents. Order affirined and judgment accordingly. |