Bohanan v. Pope , 42 Me. 93 ( 1856 )

May, J.

It is undoubtedly true, as a general proposition, that no action can be maintained upon a contract, except by some person who is a party to it. But this rule of law, like most others, has its exceptions; as, for instance, where money has been paid by one party, to a second, for the benefit of a third, in which case the latter may maintain an action against the first for the money. So, too, where a party for a valuable ‘ consideration stipulates with another, by simple contract, to pay money or do some other act for the benefit of a third person, the latter, for whose benefit the promise is made, if there be no other objection to his recovery than a want of privity between the parties, may maintain an action for a breach of such engagement. This principle of law is now well established both in this State and Massachusetts. Hinckley & al. v. Fowler, 15 Maine, 285; Felton v. Dickinson, 10 Mass, 287; Arnold & al. v. Lyman, 17 Mass. 400; Hall v. Marston, 17 Mass. 575; Carnigie v. Morrison, 2 Met. 381, and Brewer v. Dyer, 7 Cush. 337.

In this last case, it is said by Bigelow, Justice, as the opinion of the full Court, that the rule “does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases would seem to indicate; nor upon the reason, that the defendant by entering into such an agreement, has impliedly made himself the agent of the plaintiff; but upon the broader and more satisfactory basis, that the law, operating upon the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is founded.”

But while the law does this in favor of a third person, beneficially interested in the contract, it does not confine such person to the remedy which it so provides; he may, as the authority last cited shows, if he choose, disregard it .and, seek his remedy directly against the party with whom his, contract primarily exists. But if he does so, then such party may recover against the party contracting with him, in the same manner as if the stipulation in the contract had been made directly with him and not for the benefit of a third person. The two remedies are not concurrent but elective, and an election of the latter implies an abandonment of the former.

Applying these principles to the facts in the present case, it appears that the plaintiff, he being one of “ the hired men” whom the defendant by the terms of his contract with Whitney was to pay, might, if he had chosen so to do, have brought Ids action in the first instance against the defendant, relying upon the beneficial interest secured to him in said contract; or, disregarding this remedy, ho might have elected to rely upon the original undertaking of Whitney, and therefore have proceeded against him. The facts show that he elected the latter mode, and having done so, he must be regarded as having thereby consented that Whitney should be at liberty to avail himself of the funds, which he had set apart in the contract for the payment of the plaintiff, (if any such there were,) in order that he might be able by means of such funds, if necessary, to satisfy such judgment as the plaintiff might recover against him. By such election the plaintiff relinquished all claim upon the particular funds appropriated for his benefit and gave to Whitney the control and disposition thereof.

This defence, avoiding and repelling, as it does, the promise declared on, may properly be shown under the general issue. Gould’s Pleading, c. 6, § § 47, 48. Plaintiff nonsuit.

Tenney, C. J., and Hathaway, Appleton and Goodenow, J. J., concurred.