Millard v. Baldwin , 69 Mass. 484 ( 1855 )

Metcalf, J.

This demurrer must be sustained. If the defendant’s engagement to abide the award is to be regarded, in law, as made by Hewitt and him, under seal, then Hewitt alone, during his life, or his legal representatives, after his decease, can maintain an action for a violation of that engagement. The doctrine relied on by the plaintiff, namely, that when A makes a promise to B for the benefit of C, C may sue, in his own name, for a breach of that promise, is confined exclusively to paroi (unsealed) contracts. Addison on Con. 242. Sanders v. Filley, 12 Pick. 554. Johnson v. Foster, 12 Met. 167. Hinkley v. Fowler, 15 Maine, 285. And if, in consequence of the paroi modification of the sealed submission to arbitrators, the engagement to abide the award is to be regarded, in law, as a paroi engagement, (as the plaintiff contends,) then we are of opinion that this is not a case to which the doctrine relied on by the plaintiff can be applied. Mellen v. Whipple, 1 Gray, 317. Crafts v. Tritton, 2 Moore, 411. Granting that the declaration, with the award to which it refers, so distinctly alleges, that it can be deemed to be admitted by the demurrer, that the defendant has received property of Baldwin & Hewitt under such circumstances as would render him liable to the plaintiff, if he had expressly promised Hewitt' to pay the plaintiff’s debt; it is very clear that the defendant’s promise to perform the award, which the arbitrators might make on the matters in dispute between them, was to Hewitt; and that this promise would render the defendant liable, if he should fail to perform the award, to one action by Hewitt only, and not to a separate action by every other person whose claim upon the partnership the arbitrators might order him, as between himself and Hewitt, to pay.

The last clause in the declaration cannot aid the plaintiff; for it is not an allegation of fact, and as such admitted by the demurrer, but a mere statement of the plaintiff’s conclusion of law resulting from the facts already alleged. Gould PI. c. 9, $ 29.

Declaration adjudged had.