It is alleged in the complaint that the plaintiff was born on the 28th October, 1875, and soon after her birth was by her parents named Catharine, and so christened; that she was cаlled, and her name continued to be, Catharine Babcock, until February, 1876, when Christopher J. Babcock, the defendant’s testator, and the grandfather of the plaintiff, rеquested and urged her parents to change her name from Catharine to Harriet, which they were unwilling to do; that the decedent desired such change, as the namе of Harriet was a favorite name with him, and he desired it should be kept in the family; that thereupon the decedent, in consideration that the parents of the plаintiff should change the name of the plaintiff from Catharine to Harriet, promised and agreed to and with the plaintiff, and with her parents for her use and benefit, that he wоuld at his death, and in and by his last will and testament, pay to, leave for, and give to the plaintiff the sum of $500; that the parents of plaintiff, in consideration of such promise of the decedent, agreed to make the proposed change, and thereupon immediately, in performance of their said promise, did change the name of plaintiff from Catharine Babcock to Harriet Babcock, and from that time to the present that has been her name; that the decedent did not perform the agreement on his part, and did not pay to, leave for, or give to plaintiff the sum of $500, or any sum,
It is claimed by the appellant (1) that there was no consideration for the promise with which it is sought to charge the estate of the testator; and (2) that there was no privity of contract between the testator and the plaintiff, and the plaintiff cannot, therеfore, enforce the promise of the testator to plaintiff’s parents.
1. In Wolford v. Powers,
“The surrender, at the intestate’s request, of the right or privilege of naming the appellant’s child, was the yielding of a consideration. The right to give his child a name was one which the father possessed, and one which he could not be deprived оf against his consent. If the intestate chose to. bargain for the exercise of this right, he should be bound, for by his bargain, he limited and restrained the father’s right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the intestate’s request was оf no. value. It is difficult, if not impossible, to invent even a plausible reason for affirming that such a right or privilege is absolutely worthless. The father is the natural guardian of his child, and entitled to its services during infancy; and within this natural right must fall the privilege of bestowing a name upon it. In yielding to the intestate’s request, and in consideration of the promise accompanying it, the appellant certainly suffered some deprivation and surrendered some right. * * * It will not do to say that a bestowal of a name is a valueless act, and, if once it be granted to be of some value, then, in the absence of fraud and oppression, it must be held to possess the value placеd upon it by the contracting parties.”
In Diffenderfer v. Scott (Ind. App.)
In general, a waiver of any legal or equitable right at the request of another party is a sufficient consideration for a promise. 1 Pars.. Cont. (8th Ed.) 444. “A vаluable consideration, in the sense of the law, may consist either in some right or benefit accruing to the one-party, or some forbearance, detriment, lоss, or responsibility given, suffered, or undertaken by the other.” Currie v. Misa, L. R. 10 Exch. 162, referred to in Hamer v. Sidway,
2. Can the plaintiff enforce the promise? It was made expressly for her benefit, and by reason of the relаtionship between her and the promisee, and also by reason of her connection with the consideration there was such a privity between her and the promisee that she had a right to enforce the contract. This view is sustained by authority. In 1 Com. Dig. (5th Ed.) 304, and note p, the rule is stated:
“When one for whose benefit a contraсt has been expressly made is nearly related to the party from whom its consideration moves, either may sue for the breach of it, though the pendency of еither’s suit will preclude the other’s action.”
This is based mainly on the case of Dutton v. Poole, 2 Lev. 210, where the right of the child to sue was asserted. The authority of that case has been often recognized. Shepard v. Shepard,
“To give a third party who may derive a benefit from the performance or the promise an action, there must be: First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, the promisee and the party to be bеnefited, and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”
The plaintiff here has certainly an equitable claim to the benefit of the promise. The parents acted for her as well as for themsеlves in the transaction. They owed her a duty in that regard, from which it may well be said a privity arose sufficient for the maintenance of the action.
The case of Townsend v. Rackham,
It is suggested by the appellant that no damages are alleged. If there was a breach of the' contract, there were, at least, nominal damages. Besides, the allegation of the complaint is that the decedent would pay to the plaintiff the specified amount. We are of the opinion that a cause of action is alleged.
Interlocutory judgment affirmed, with costs, with leave to defendant to answer in 20 days upon payment of the costs of the demurrer and of the appeal. All concur.