Hostetter v. Hollinger

Opinion,

Me. Justice Clabk:

If it be true, as alleged, that John S. and Jacob Hostetter each placed in the hands of their brother, Henry Hostetter, the sum of $333.33|- upon the agreement of Henry that he would contribute a like sum to the fund, making in all $1,000, for the use of Maria Baer, the law would perhaps give effect to the intention of the parties and create a binding obligation upon Henry to apply the money according to the agreement. The contract being in furtherance of a common purpose, the promise and payment of the money in pursuance of it by John and Jacob, would be a sufficient consideration for Henry’s promise, and he could not recede from it without the consent of all.

Although Maria Baer was not a party to the consideration, and was in some sense a stranger to the contract; although she may not even have known of the transaction between the three brothers, yet, if the contract was wholly for her own benefit; if the control of the fund was wholly relinquished by the parties creating it, and Henry Hostetter acted, or assumed to act, as her agent in receiving and holding it, so that the ownership of the fund vested in her, she might maintain an action in her own name when she became informed of the facts. It is well settled in a series of decisions, that he for whose benefit a promise is made, may maintain an action upon it, although no consideration pass from him to the defendant, nor any promise from the defendant directly to the plaintiff: See Hind v. Holdship, 2 W. 104. As a general rule, a plaintiff cannot enforce a contract to which he is a stranger, yet a defendant cannot withhold property of the plaintiff merely because he received it from a third person. This is too plain for argument when the title .was originally in the party who brings the suit, and equally true when the transaction confers a title: Hare on Cont., 193; Townsend v. Long, 77 Pa. 143; Justice v. Tallman, 86 Pa. 147. When the contract is for the benefit of the contracting party, however, and the third person is. a stranger to the consideration, the rule is otherwise, and the action must be in the name of the former: Blymire v. Boistle, 6 W. 182; Torrens v. Campbell, 74 Pa. 470; Kountz v. Holthouse, 85 Pa. 235.

But the statute of limitations was certainly a bar to the plaintiff’s recovery, unless tolled by an acknowledgment of the debt or a promise to pay it within six years. It may be conceded that the obligation of Henry Hostetter to Maria Baer was in the nature of a trust; but the remedy for recovery of the money was at law, and the trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which chancery has exclusive jurisdiction. A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person or apply it to the purpose intended, is within-the operation of the statute of limitations: Lyon v. Marclay, 1 W. 271; Finney v. Cochran, 1 W. & S. 112; Zacharias v. Zacharias, 23 Pa. 452; Fleming v. Culbert, 46 Pa. 498. There is no proof of any fraudulent concealment, much less of any fraudulent act or misrepresentation on the part of Henry Hostetter, and we cannot presume fraud without proof. For anything that appears, Maria Baer may have been fully informed of all the facts from the first. The statute of limitations began to run from the time the right of action accrued thirty years ago, and there was certainly no sufficient proof of any acknowledgment or new promise within six years to take the case out of the statute. John S. Hostetter testified that Pleitry told him, a year before he died, which was in 1881, that if Maria should need the money (it was one thousand dollars) he would pay it; but as long as she could work she didn’t need it. He also testified that the money was payable any time that it was to be used for her support in her old age, if she got into circumstances to need it, and that Henry said, if she died her brothers would get it, or would be glad of it. Samuel Hostetter testified that in November, 1880, Henry told him he had it ($1,000), and that she would get it some, time. Now, Samuel Hostetter was an entire stranger to the transaction; he did not pretend to represent Maria Baer, and an acknowledgment or promise made to him was in the law of no effect; and as John S. Hostetter had wholly relinquished his right to the money, we cannot see that he stood in any relation to Maria Baer which would give efficacy to Henry’s alleged acknowledgment and promise to him. Besides, the promise, as he states it, was coupled with a condition. It was not an unequivocal and absolute promise to pay, nor a clear and definite acknowledgment consistent with such a promise; he coupled the promise with a condition that as long as she was able to work she did not need the money, and arrogated to himself to decide when her necessities should arise.

As the money was in Henry Hostetter’s hands for her use, “payable at any time,” “she got in circumstances to need it,” it was payable on demand; the statute began to run from the time she had a right to make the demand, and, in the absence of any proper acknowledgment or promise within six years, the plaintiff’s right was barred. In this view of the case it is not necessary to consider the remaining assignments of error.

The judgment is reversed.