Casselman's Administratrix v. Gordon , 118 Va. 553 ( 1916 )

Nelly, J.,

delivered the opinion of the court.

The declaration in this case avers, and the agreed statement upon which the case was tried stipulates, the following essential facts: Claude E. Sprenlde being the owner of certain real estate upon which there was an unsatisfied .deed of trust, given by a prior owner, sold and conveyed the same to Emma M. Moran. The latter conveyed-the property to a trustee (subject to the above-mentioned deed of trust) to secure to Sprenlde a part of the purchase money, which was represented by two notes payable to the order of Emma M. Moran and endorsed by her for $350 and $1,300, respectively. The note for $350 was subsequently paid by Casselman, a subsequent purchaser hereinafter mentioned. The note for $1,300, delivered originally with the other one to Sprenkle, passed by successive valid transfers into the hands of the defendants in errdr, Gordon and Lightfoot, receivers. In the meantime Emma M. Moran sold and conveyed the premises to Jerry Mor ano, who assumed and covenanted to pay the debts secured by both the above-mentioned deeds of trust. Thereafter Morano conveyed to Russell Eray, who in turn conveyed to R. L. Barnes, but neither Eray nor Barnes assumed the payment of the lien debts aforesaid. Barnes then conveyed the property to Lawrence Casselman, who, to use the exact language of the declaration and the agreed statement of facts, “as a part of the consideration for said conveyance, by an instrument under seal, assumed payment of the two said deeds hereinabove described, and promised and covenanted to pay the debts secured thereby, a portion of which debt was the $1,300 note now held by the plaintiffs.” Oasselman failed and refused to pay the $1,300 note at maturity. The trustee in the deed of trust securing the same sold the property subject to the first deed of trust, and realized so small a Sum that after paying the expenses of the sale there remained only $103.36 to be credited on the note, leaving a balance of $1,196.64. Gordon and Lightfoot, receivers, thereupon brought this action of assumpsit to recover the last-named sum with interest.

There was a demurrer to the declaration, which was overruled, and, thereupon, a jury being waived, the case was tried by the court upon the agreed facts, and a judgment rendered for the receivers.

There are two assignments of error, one to the action of the court in overruling the demurrer, and the other to its action in entering judgment for the plaintiffs upon the agreed facts, but the same contentions are involved in both assignments. These contentions are (1) that there was no consideration for Oasselman’s agreement to pay the note sued on, and (2) that there was no privity of contract between him and the holders of the note. Both of these contentions are based upon the fact that Oasselman’s immediate grantor, Barnes, had not assumed and was not personally liable for the debt, but it is manifest that neither contention can prevail in the face of the agreed facts and of the provisions of section 2415 of the Code of Virginia.

The quotation above set out from the declaration and agreed statement of facts is conclusive upon the question of consideration and requires no further discussion.

The claim of lack of privity between the parties is decisively met by the plain terms of the statute, which so far as material here are as follows: “If a covenant or promise be made for the sole benefit of a person with whom it is not made . . .

such person may maintain in his own name any action thereon, he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.” Code, sec. 2415.

The very fact that there was no liability upon Barnes, so much relied upon by the plaintiff in error, brings this suit against her clearly within the terms of the statute. If Barnes had assumed and become liable for the debt, then there would have been some room to argue that the assumption of it by Oasselman was primarily for the protection and benefit of Barnes and only incidentally for the benefit of the creditor, but as Barnes had not assumed the payment, the contract was manifestly made for the sole benefit of the holder of the note. This result is so manifest and so free from difficulty or doubt, and the case so fully meets one of the universally recognized tests of the statute in question, that we have deemed it unnecessary to do more than state the facts and our conclusion thereon with a reference to the following authorities: Newberry Land Co. v. Newberry, 95 Va. 119, 121, 27 S. E. 899; McIlvane v. Big Stony L. Co., 105 Va. 613, 620, 54 S. E. 473; Burks’ Pl. & Pr., sec. 47, p. 50.

There is no error in the judgment, and it will be affirmed.

Affirmed.