does not agree to pay it, and this grantee thereafter transfers the premises to another who by the deed assumes and agrees to pay the mortgage. The promisee has no interest in the performance of this promise, since he is not personally liable for the debt, and he is no longer the owner of the premises. The only intelligent object that can be suggested for requiring the promise from the grantee is a wish to benefit the mortgagee. In that view the case would fall within the first type of promises for the benefit of a third person and the mortgagee would be the sole beneficiary. But it is hard to suppose that the promisee had any such intention. The object in fact of such a stipulation, if its insertion is not altogether a mistake, is doubtless to guard against a supposed or possible liability on the part of the promisee. The decisions which generally deny the mortgagee a right to recover in such a case, therefore, seem sound.1

Another peculiar situation arises where a mortgagor makes a second mortgage and the second mortgagee agrees to pay off the first mortgage. Subsequently the first mortgagee endeavors to take advantage of this promise. He is denied the right and justly. In the ordinary case where a purchaser assumes and agrees to pay a mortgage he has received a quid pro quo for the amount of the mortgage. He owes the amount of the mortgage to some one. In the case under consideration, however, the second mortgagee does not owe the amount of the first mortgage. He has agreed virtually to lend the amount of it to the mortgagor by paying the first mortgagee. A promise to lend a debtor money, though on technically good consideration, is not one which a court of equity should enforce for the benefit of a creditor. Nor can breach of the promise by the second mortgagee be ground for substantial damages. The only consequence of the breach is that the debtor continues

1 Ward v. De Oca, 120 Cal. 102; Morris v. Mix, 4 Kan. App. 654; Brown v. Stillman, 43 Minn. 126; Nelson v. Rogers, 47 Minn. 103; Crone v. Stinde, 68 Mo. App. 122 (reversed); Hicks v. Hamilton, 144 Mo. 495 (overruled); Harberg v. Arnold, 78 Mo. App. 237 (overruled); Wise v. Fuller, 29 N. J. Eq. 257, 266; Norwood v. Hart, 30 N. J. Eq. 412; Mount v. Van Ness, 33 N. J. Eq. 262, 265; Eakin v. Shultz, 47 At. Rep. 274 (N. J. Eq.); King v. Whitely, 10 Paige 465; Trotter v. Hughes, 12 N. Y. 74; Vrooman v. Turner, 69 N. Y. 280; Smith v. Cross, 16 Hun 487; Young Men's Assoc. v. Croft, 34 Oreg. 106; Portland Trust Co. v. Nunn, 34 Oreg. 166; Osborne v. Cabell, 77 Va. 462 semble.

Recovery was allowed in Cobb v. Fishel, 62 Pac. Rep. 625 (Col. App.); Dean v. Walker, 107 Ill. 541; Marble Bank v. Mesarvey, 101 Ia. 285; Heim v. Vogel, 69 Mo. 529; Crone v. Stinde, 156 Mo. 262; Hare v. Murphy, 45 Neb. 809; Brewer v. Maurer, 38 Ohio St. 543; Merriman v. Moore, 90 Pa. 78; McKay v. Ward, 20 Utah, 149: Enos v. Sanger, 96 Wis. 150.

liable to the first mortgagee instead of to the second mortgagee for the amount of the first mortgage. As the rights of the first mortgagee against the promisor cannot exceed the rights of the promisee there is no asset of value applicable to the mortgage. As the court said in the first case that presented these facts, "if the action were allowed, any one who promised to advance money to another to pay his debts would be liable to an action by the creditor." 1

Another class of promises to satisfy a debtor's liability deserves particular mention the promise of an individual or firm to pay the liabilities of an outgoing partner. It is in this kind of case that the greatest difficulty arises in determining whether there is a novation. On principle it is clear that to work a novation the promisor must make an agreement with the creditor to become directly liable to him in consideration that the creditor will accept him as debtor in place of the original debtor. It is not enough, therefore, for the creditor to learn of the promise to the original debtor and express assent to that arrangement. Such assent does not necessarily include an agreement to give up the claim against the original debtor. Moreover, the promisor must assent to enter into a contractual relation directly with the creditor. By a curious freak the law of New York 2 does not allow the creditor a remedy on a promise made to his debtor in this class of cases. The law of Pennsylvania, on the other hand, though not generally adopting the doctrine of Lawrence v. Fox, makes an exception here in favor of the creditor. In fact, there is no reason for discriminating for or against the creditor here, and so the matter is generally treated.*

1 Garnsey v. Rogers, 47 N. Y. 233. The further distinction suggested by the court that the promise was not made for the benefit of the mortgagee amounts to nothing. It is true, but it is also true in any case where a grantee agrees to pay a mortgage.

The case has been followed several times, and it has been held immaterial that the deed creating the second mortgage is on its face absolute. Pardee v. Treat, 82 N. Y. 385; Roe v. Barker, 82 N. Y. 431; Root v. Wright, 84 N. Y. 72; Cole v. Cole, 110 N. Y. 630; Smith v. Cross, 16 Hun 487.

A similar principle was applied in favor of a grantee who was a bare trustee in Gifford v. Corrigan, 105 N. Y. 223.

2 Merrill v. Green, 55 N. Y. 270; Wheat v. Rice, 97 N. Y. 296; Serviss v. McDonnell, 107 N. Y. 260; Corner v. Mackey, 147 N. Y. 574; Edick v. Green, 38 Hun 202. But see Claflin v. Ostrom, 54 N. Y. 581; Arnold v. Nichols, 64 N. Y. 117; Hannigan v. Allen, 127 N. Y. 639.

8 Townsend v. Long, 77 Pa. 143; White v. Thielens, 106 Pa. 173; Adams v. Kuehn, 119 Pa. 76, 86; Delp v. Brewing Co., 123 Pa. 142. But it seems to be essential that property shall have been transferred when the promise is made. Campbell v. Lacock, 40 Pa. 450; Robertson v. Reed, 47 Pa. 115; Torrens v. Campbell, 74 Pa. 470.

4 See . g. allowing the action, Maxfield v. Schwartz, 43 Minn. 221; Lovejoy v. Howe, 55 Minn. 353; Ellis v. Harrison, 104 Mo. 270; Shamp v. Meyer, 20 Neb. 223;

On the same principle the holder of a check has sometimes been given a right against the bank on which the check was drawn.1 The common argument in favor of such a right is that a check is an equitable assignment of part of the fund in the bank. If it be granted that this is unsound, that a check is in its nature an order, not an assignment, the further argument remains that the bank has promised its depositor to pay the latter's checks and that the holder of a check may sue upon this promise. There seems no valid distinction between such a case and Lawrence v. Fox. The bank in effect promises to pay such debtors of the depositor as the latter indicates, upon presentation of a check in proper form. No distinction can be made because the creditor to be paid is indefinite at the time the promise was made. Such is the fact in many cases, and it is rightly regarded as immaterial.3

The nature of a creditor's right against one who has promised the debtor to pay the debt is involved in determining when the statute of limitations bars the creditor's action. On principle the creditor must have a claim that has not been barred against the original debtor, and the latter must also have such a claim against the promisor. But courts which allow a direct right to the creditor against the promisor hold that though the creditor's original claim is barred he may nevertheless enforce a claim against the promisor if the statutory period has not run since the debt was assumed.1

It is when the rights of the promisee are considered that the difficulties in the American law become apparent. It seems obviously unfair to subject the promisor to suits both by the creditor and the promisee, and on the other hand the doctrine that a proMerriman v. Social Mfg. Co., 12 R. I. 175; Spann v. Cochran, 63 Tex. 240; denying the action, Morgan v. Randolph-Clowes Co., 73 Conn. 396; Ayres v. Gallup, 44 Mich. 13.

1 Harrison v. Wright, 100 Ind. 515, 533; Hawley v. Exchange Bank, 97 Ia. 187; Harrison v. Simpson, 17 Kan. 508; Chanute Bank v. Crowell, 6 Kan. App. 533; Fonner v. Smith, 31 Neb. 107. Conf. Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82. See Daniel on Negotiable Instruments, 4th ed., § 1637 seq.

2 Ibid.

3 Thomas Mfg. Co. v. Prather, 65 Ark. 27; Morgan v. Overman Co., 37 Cal. 534; Whitney v. Am. Ins. Co., 127 Cal. 464; Williamson Stewart Co. v. Seaman, 29 Ill. App. 68; Brenner v. Luth, 28 Kan. 581; Bell v. Mendenhall, 71 Minn. 330; State v. St. Louis & S. F. Ry. Co., 125 Mo. 596, 615; Johannes v. Phenix Ins. Co., 66 Wis. 50, 56. Many other decisions might be added. Dow v. Clark, 7 Gray 198, decided when the Massachusetts court was disposed to restrict the creditor's right of action, is the only contrary decision.

4 Daniels v. Johnson, 129 Cal. 415; Kuhl v. Chicago & N. W. R. R., 101 Wis. 42. See also Roberts v. Fitzallen, 120 Cal. 482; Robertson v. Stuhlmiller, 93 Ia. 326.

misee in a contract made upon good consideration furnished by him cannot sue upon it is hard to reconcile with principle. In cases where the third person is the sole beneficiary the injury to the promisee in depriving him of a right of action is purely technical, because breach of the promise causes him no pecuniary damage; but in the case of a promise to pay a debt the promisee is vitally interested in the performance of the promise. The results reached by the courts are various. In Alabama, in a case of the latter type, the court said: "The promise enured to the benefit of the creditors and prima facie they alone can claim payment or sue for the breach of the agreement," and in Maine, it was said in an early case, "the promisee can recover only nominal damages since the defendant may be liable to the beneficiary;" but this case has recently been overruled. In Nebraska the consignor cannot sue on a bill of lading, though the contract is with him, in the absence of proof that he was the owner of the goods, that he was liable for their loss, or that he had sustained special damage. In Nevada, also, it was held that a promisee without pecuniary interest in the performance of a promise could not sue upon it. In Rhode Island the rule is the same. In New York if the third person can sue, it seems the promisee cannot. A more complete somersault than the New York court has made on this subject when dealing with mortgages cannot be imagined. In the days before Lawrence v. Fox was decided it had been held that the mortgagee, though not entitled to sue directly a grantee who had assumed the mortgage, might be "subrogated" to the right of the mortgagor - the promisee. Now the court holds that the promisee cannot sue, but upon paying the mortgage debt he is entitled to be subrogated to the right of the mortgagee to sue upon this promise.7 Ohio has recently reached the same con

1 Dimmick v. Register, 92 Ala. 458, 46 North Alabama Development Co. v. Short, 101 Ala. 333.

2 Burbank v. Gould, 15 Me. 118.

3 Baldwin v. Emery, 89 Me. 496. In Martin v. Ætna Ins. Co., 73 Me. 25, 28, it was held in a case of the sole beneficiary type that the promisee might sue as trustee for the beneficiary.

4 Union Pacific Ry. Co. v. Metcalf, 50 Neb. 452. See, contra, Snider v. Adams Express Co., 77 Mo. 523, where consignor was allowed to recover as trustee for consignee. See 4 Elliott on Railroads, § 1692.

Ferris v. Carson Water Co., 16 Nev. 44.

6 Adams v. Union R. R. Co., 21 R. I. 134.

7 Miller v. Winchell, 70 N. Y. 437, 439; Ayers v. Dixon, 78 N. Y. 318. For the earlier New York decisions, see ante, p. 788, n. 5. In Claflin v. Ostrom, 54 N. Y. 581, 584, it was held that the promisee or his assignee might sue upon a pro

clusion, though it is in conflict with an earlier Ohio decision which was not cited.2

The idea behind the cases which deny the promisee a right of action is that by the assent of the third person a novation is created; but as has been already shown, a contract with a debtor to pay his debt, even though the creditor assents, does not amount to a novation.

Whatever the hardship upon the promisor may be in being liable to two persons when he promised but one, most courts have found it the simpler alternative, a recovery by either party being a bar to an action by the other. In mortgage cases especially the promisor may thus find himself in a difficult position between the mortgagee and the promisee, the grantor of the premises. If the promisor fails to keep his promise to pay the debt, he is liable to the promisee to the full amount of the debt; and unless the promise

mise to assume the debts of a firm, and in Ward v. Cowdrey, 51 Hun. 641, affd. 119 N. Y. 614, it was held that a promisee might sue in the absence of proof that the third person knew of or acquiesced in the arrangement. The beneficiary in these cases could not have sued.

...

1 Poe v. Dixon, 60 Ohio St. 124. Compare Blood v. Crew Levick Co., 171 Pa. 334, 337. The court there said: "As to the amount still due and unpaid on the mortgages the plaintiff cannot recover to her own use until she has been compelled to make payment and then only to the extent of payments actually made. An action might be maintained by the holder of the mortgage in the name of the covenantee for his use upon the express covenant to pay contained in the deed; and I see no reason why an action might not be brought by a covenantee to recover damages sustained by reason of the breach."

2 Wilson v. Stilwell, 9 Ohio St. 467. A retiring partner, who had received a promise from the remaining partner that the latter would pay the firm debts was held entitled to sue upon the promise without having first paid the debts himself.

8 See also Brewer v. Dyer, 7 Cush. 337, 341. The promisee "might likewise have a remedy on the contract in case the plaintiff should not elect to adopt it."

* Union Mut. L. I. Co. v. Hanford, 143 U. S. 187; Steene v. Aylesworth, 18 Conn. 244, 252; Tinkler v. Swaynie, 71 Ind. 562; Rodenbarger v. Bramblett, 78 Ind. 213; Foster v. Marsh, 25 Ia. 300; Smith v. Smith, 5 Bush 625, 632; Baldwin v. Emery, 89 Me. 496; Rogers v. Gosnell, 51 Mo. 466, 469; Snider v. Adams Express Co., 77 Mo. 523; Beardslee v. Morgner, 4 Mo. App. 139, 143; Megher v. Stewart, 6 Mo. App. 139, 143; Weinreich v. Weinreich, 18 Mo. App. 364, 372; Anthony v. German Am. Ins. Co., 48 Mo. App. 65; Am. Nat. Bank v. Klock, 58 Mo. App. 335; Gunnell v. Emerson, 73 Mo. App. 291 (conf. Bethany v. Howard, 149 Mo. 504); Strong v. Kamm, 13 Oreg. 172; Edmundson v. Penny, 1 Barr 334; Hoff's Appeal, 24 Pa. 200; Blood v. Crew Levick Co., 171 Pa. 334; Snyder v. Summers, 1 Lea 534; Callender v. Edmison, 8 S. Dak. 81; Hull v. Hayward, 13 S. Dak. 291; Jones v. Thomas, 21 Gratt. 96. See also authorities in next note.

5 Meyer v. Hartman, 72 Ill. 442; Stout v. Folger, 34 Ia. 71; Furnas v. Durgin, 119 Mass. 500; Locke v. Homer, 131 Mass. 93; Strohauer v. Voltez, 42 Mich. 444; Dorrington v. Minnick, 15 Neb. 397; Rawson v. Copeland, 2 Sandf. Ch. 251; Rector v. Higgins, 48 N. Y. 532; Sage v. Truslow, 88 N. Y. 240; Wilson v. Stilwell, 9 Ohio St.