Catland v. Hoyt , 78 Me. 355 ( 1886 )

Walton, J.

It appears by the report in this case that David B. Catland obtained from the United Order of the Golden Cross a certificate in the nature of a life insurance policy, by the terms of which the money that should become due upon it was to be paid to the defendant, and that the defendant, after the decease of Catland, actually received upon it the sum of $1959.60. The plaintiff, who is the executor of David B. Catland, claims, and, at the trial, offered evidence tending to prove, an oral agreement between the defendant and the deceased, by the terms of which the defendant promised that, after deducting what should be due from the deceased to him, he would pay the balance to the heirs of the deceased. The defendant objected to this evidence upon the ground that it tended to vary the terms of the written agreement between the deceased and the insurance company; and further, that the evidence, if admitted, would show a promise by the defendant to pay, not to the deceased, but to his heirs, and that such a promise would not support an action by the executor. Those objections were overruled and the plaintiff obtained a verdict for $1239.91. The defendant excepts to the ruling, and moves for a new trial on the ground that the verdict is excessive- and against the weight of evidence. It is the opinion of the court, that the ruling was correct and that the verdict was justified by the evidence. The oral evidence was not in conflict with the-written contract. It was offered, not to vary or control the-contract between the deceased and the insurance company, bufe to show another and an independent contract between the deceased and the defendant. It was offered, not to show that the defendant was not to receive the money, but to show what he was to do with it after receiving it. For this purpose the evidence was clearly admissible. And as the latter agreement, if made at all, was made with the deceased, his executor is a proper party to sue for the breach of it. It is true that by the terms of this agreement, the defendant promised to pay the money to the heirs of the deceased. But the contract was not with the heirs ; it was with the deceased ; and not having been performed, the executor was a proper party to sue. There is a conflict in the authorities as to whether, when a contract is made with A to pay money to B, B may maintain an action for the breach of it. But there is no doubt that for the breach of such a contract, A, or, in case of his death, his executor or administrator, is a proper party to sue, as the authorities cited by the plaintiff’s counsel abundantly show.

Motion and exceptions overruled. Judgment on the verdict.

Peters, C. J., Virgin, Libbey, Emery* and Haskell, JJ., concurred.