39 N.Y.S. 228 | N.Y. App. Div. | 1896
Lead Opinion
The court is impressed with the strong equity of plaintiff’s cage as exhibited, not only by the oral evidence and the letters of the defendant, but by the very terms of the agreement sued upon. But conceding this, and, further, that there was a contract between Dun and the defendant, and between Buchanan and the defendant, upon a sufficient consideration, for the benefit of the plaintiff, the question remains whether she can recover upon such a contract.
The respondent, recognizing the difficulty of sustaining such right upon the contract made between Dun and defendant, rests her case upon that made between the defendant and' Buchanan, to pay the plaintiff $50,000 in consideration of Buchanan’s services to defendant. In opposition the appellant contended below, as he does here, that the only contract shown was one between Dun and the defend
There is much force in this construction of the contract between the parties; but if we take the stronger and more favorable position advanced by the respondent it remains to be considered, assuming a contract between plaintiff’s husband and defendant for her benefit, whether upon this theory she would be entitled to recover. As thus presented the question is, can a wife enforce payment in her own name where the husband renders valuable services and stipulates with the person to whom the same are rendered that compensation therefor shall be made, not .to him, but to her ?
It is insisted that the promise having been made to the husband of the plaintiff, who owed to her the obligation of support and maintenance (an obligation both legal and moral), she as the designated beneficiary is entitled to enforce the contract expressly made for her benefit and on her behalf. In support of this proposition our attention is called to many English cases, and many cases in this State, beginning with that of Lawrence v. Fox (20 N. Y. 268), wherein it was held that an action lies on a promise made by the defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration. In Vrooman v. Turner (69 N. Y. 284) it is said: “ The courts are not inclined to extend the doctrine of Lawrence v. Fox to cases not clearly within the principle of that decision. Judges have differed as to the principle upon which Lawrence v. Fox and kindred cases rest, but in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise. Whether the decisions rest upon the doctrine of agency, the promisee being regarded as the agent for the third party, who, by bringing his action adopts his acts, or upon the doctrine of a trust, the promisor being regarded
There have been, however, certain exceptions to this general rule recognized in some of the cases, beginning with the English case of Dutton v. Pool (1 Ventris, 318), upon which the learned trial judge relied for his action. This case is the foundation for a distinct class of cases where promises have been made to a father or other near relative for the benefit of a child or other dependent relative in which the person for whose benefit the promise was made has been permitted to maintain an action for the breach of it. The nearness of the relation between the promisee and him for whose benefit the promise was made has been sometimes assigned as the reason for these decisions, and while the principle upon which they have been placed has been variously stated, and in some instances questioned, both in England and America, the decisions have been followed and must, therefore, be regarded as settled law. In this State the cases in which reference has been made to Dutton v. Pool are, Schemerhorn v. Vanderheyden (1 Johns. 140); Cumberland v. Codrington (3 Johns. Ch. 254); Barker v. Bucklin (2 Den. 45); Bleeker v. Bingham (3 Paige, 246); King v. Whitely (10 id. 465); Lawrence v. Fox (20 N. Y. 268); Burr v. Beers (24 id. 178); Knowles v. Erwin (43 Hun, 150). In all of these where the promise of the third person has been enforced it will be found that, as in Dutton v. Pool, the promisee and the person for whose benefit the promise was made stood in the relation of parent and child; and in Todd v. Weber (95 N. Y. 181) the person to be benefited was an adopted child; and they proceeded upon the fact that the promisor had obtained a consideration from the father for which he undertook to discharge the duty that such father owed to the child
But it is insisted that the duty which a father owes his child is no greater or higher than that which a husband owes his wife; and it was assumed by the learned trial judge that the duty and obligation of the husband to the wife is, as a consideration, quite equal to the duty and obligation of the father to the child. But if we concede that the obligation of the father is to support the child, and that the duty of the husband is to support the wife; that upon the death of the father the child will be entitled to a portion of his estate, and that upon the death of the husband the wife would be entitled to a portion of her husband’s estate, the fact still remains that this was not a contract looking towards the discharge of the obligation which the husband owed to support the wife, and must, therefore, be supported, if at all, upon the mere relation of husband and wife. We can find no authority for holding that a promise made to the husband bji a third person for the benefit of his wife, which was not intended to provide for her support or to discharge the husband’s duty in that regard, could be enforced by the wife. Nor do we think that there is a disposition to extend the principle of some of the cases relating to father and child to any other relationship. An examination of these cases will show that, in almost all of them, the obligation and duty of support and maintenance rested upon or was assumed by the person to whom the promise was made, and that the promisor, for a consideration passing from the promisee, undertook to discharge that duty or obligation. Here the arrangement was, not to provide a fund for the support and maintenance of the wife, but to furnish her with an independent sum; and the absence of any duty or obligation on the husband’s part to provide such, eliminates the essential element or principle which is the basis of nearly all the cases where actions on behalf of a child have been allowed
While, therefore, in view of the strong equities in plaintiff’s favor, we regret that the action is not sustainable in her behalf, this is to some extent lessened by the view we entertain that the husband may have the right in his own name and on his own behalf to secure some of the recompense to which he is entitled, and which, under the contract, he intended to secure for the benefit of his wife.
The judgment must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Rumsey, and Williams, JJ., concurred; Ingraham, J., dissented.
The contract upon which this action was brought is expressed in a letter signed by the defendant and addressed to Mr. Robert G. Dun. So much of it as is material to the case is as follows : “ It is understood between Mr. R. D. Buchanan and myself that, in the event of the success of the proceedings now pending, or which may be taken to practically set aside the thirty-fifth section of the will of my late uncle, Samuel J. Tilden, in view of the assistance looking to that end which has been and may be rendered by Mr. Buchanan, as well as yourself, that I will, and hereby do become responsible for the payment to Mrs. Adelaide E. Buchanan, or her order, in the sum of fifty thousand dollars.”
The circumstances under which that contract was made were that an action was then pending to set aside the thirty-fifth section of the will of Samuel J. Tilden. The defendant was the principal
The action was brought to compel the payment by the defendant of the $50,000 to Mrs. Buchanan, and the only question presented is whether, under all the circumstances, Mrs. Buchanan had a cause of' action arising out of the contract which is stated above.
It is claimed by the plaintiff that her right to sue stands upon the-principle enunciated by the Court of Appeals in Lawrence v. Fox (20 N. Y. 268), which is that, where a promise is made to one party for the benefit of another, the person for whose benefit the promise-is made has an action against the promisor. The facts of that case--were, that the promisee loaned Fox a certain sum of money; thepromisee also loaned to Lawrence an equal sum of money, and, in consideration that the promisee should loan the money to Fox, Fox agreed to pay it to Lawrence. In the last analysis the ground upon which the right to maintain the action was put was that there was. a novation. But such a ground necessarily involves the proposition that there is some duty owing from the promisee to the person for-whose benefit the promise is made. The existence of that ground has since been recognized in all the cases, and unless some such duty has been shown to exist which the law recognizes, the person for whose benefit the contract is made is not permitted to maintain-an action.
The rule which has finally been laid down upon that subject is as follows : Where a promise is made by one person to another for the-benefit of a third, in the absence of any liability of the promisee to such third person, he cannot enforce the promise. (Townsend v. Rackham, 143 N. Y. 516.) In that case Judge Peckham, referring
An authority precisely in point in this case is Durnherr v. Rau (135 N. Y. 219). In that case Emanuel Durnlierr, the husband of the plaintiff, had deeded to the defendant certain lands, in which deed the wife did not join. The defendant, the grantee, covenanted in the deed to pay all the incumbrances' on the premises by mortgage or otherwise, and it was expressly declared in the deed that the wife reserved her right of dower in the premises. The defendant, upon being applied to, refused to pay the amount of the wife’s right of dower and permitted the mortgages in which she had joined to be foreclosed, thus cutting off her dower. An action was brought for the damages, and the court held that there was no right of action in the plaintiff, because there was, on the part of the husband, no legal or equitable obligation of which the law could take cognizance in favor of the wife to protect her right of dower, for the reason that he owed her no duty enforcible in law or in equity to relieve her dower from the mortgages. „ The rule there is, that to permit the third party to enforce such a promise, the promisee must have a legal interest that the covenant be performed in favor of the party claiming the performance. It is quite clear that the right of dower of the wife, even before the death of the husband, was, if not an estate, certainly an incumbrance on the premises conveyed to Rau, and was strictly within the terms of this conveyance to pay incumbrances on the premises by mortgage or otherwise. (Youngs v. Carter, 10 Hun, 194; Mills v. Van Voorhies, 20 N. Y. 412.) In Youngs v. Carter (supra) it was held that there was a moral duty on the husband to do nothing by way of depriving his wife of that right. If, therefore, a moral obligation on the part of the promisee is sufficient to permit the enforcement of such a contract,
It has been claimed that this case comes within this rule, because Buchanan, being the husband of the plaintiff, there was a moral obligation resting upon him to support and maintain his wife, and that for that reason this promise can be enforced. It is quite true that the husband is uiider an obligation to support his wife, and it may be that any contract which he makes with a third party, having for its object the carrying out of that obligation, would be enforced by the courts. But certainly the liability of the promisor in such case will go no further than the extent of the obligation of the promisee. There is no obligation, legal or equitable, here on the part of the husband towards the wife, to entitle her to the performance of this contract. This was not a contract for her support, nor was it one to do anything which, under any circumstances, the husband could be compelled to do. It was simply an obligation on the part of the defendant to pay to the plaintiff a sum of money as an independent fortune, for her separate estate, in case the husband rendered some service to him. So far as the plaintiff and her husband were concerned, as to this contract, there were no legal relations between them. They occupied no different relation from that of any other man and woman, because the husband was under no obligation in any way to obtain for his wife a separate estate, or to do anything for the benefit of her separate estate, and this was simply a contract on the part of the defendant to give her a separate estate, and not to do anything which the husband was called upon to do by way of her support, or to relieve him in any way from the duty which the law put upon him to support his wife. That duty, so far as appears, he Avas performing, and there was, therefore, no legal or equitable claim Avliich the plaintiff had towards him, Avhicli he had not performed, that could serve as a basis for the novation Avliich must lie at the foundation of this cause
There is no case of authority in this State where this question has been raised in which it has been held that the moral obligation under which a husband lies to support his wife is sufficient to enable her to maintain an action upon any such contract as this. It has been shown by Mr. Justice O’Brien that the rule has not been extended in this State so that a contract resting upon that obligation will be enforced. The cases cited by the respondent do not establish the existence of any such rule. They are based upon the case of Dutton v. Poole (2 Levinz, 210). Of that case it may be said in the first place that it has been repudiated by the English courts by which it was decided (Tweddle v. Atkinson, 101 Eng. C. L. 393) and it is no longer authority in that country.
The case of Shepard v. Shepard (7 Johns. Ch. 57) does not sustain the respondent's contention. The plaintiff in that case was the widow of Hazel Shepard. Before her marriage she had made a contract with her husband by which he assigned fifty acres of land out of which her dower should be taken, and she released her dower in all other lands owned by her intended husband, and he covenanted that she should have her dower in that particular land. After the marriage, Hazel Shepard conveyed to her another lot of land to make provision for her support when she should become a widow. The defendant was the son of Hazel Shepard. After the execution by the husband to the plaintiff of the second conveyance, he released the same premises to his son, which before he had conveyed to the plaintiff, and received from his son, the'defendant, a deed by which the son released to the father the same premises during his life and covenanted with the father that he would pay to the plaintiff during her widowhood $60 annually or $400 in a lump sum, upon condition that she would release to the defendant all her right as widow of' Hazel Shepard, or by virtue of any deed made by him to her, to the lands of Hazel Shepard. Hazel Shepard died, leaving the plaintiff, his widow, without any means of support exce23t the covenant of the son or her right to the dower in the fifty acres of land. She offered to release her right of •dower to the son and demanded payment of the annuity or the sum
There was on the part of the husband in that case an express obligation arising out of his ante-nuptial contract that his wife should have dower different from and additional to that arising from the marital relation, which clearly was sufficient to support the action within the case of Lawrence v. Fox, as limited by the later cases, and, therefore, the case might be supported on the second ground stated by the chancellor within the facts as they appeared; but it was not decided upon .any such principle, which was not necessary to be considered. It is noticeable that while that case has been frequently followed it has always been upon the first point decided, and never upon the last dictum. (See Hunt v. Johnson, 44 N. Y. 27, and other cases.)
A careful examination of the cases will show that since Lawrence v. Fox has come to be carefully examined, and its limitations clearly understood and expressed, no contract of the nature of the one enforced there has been permitted to be enforced by the party for whose benefit the action was brought unless he could show that there was some enforcible, legal or equitable obligation due, or to become due, to him from the promisee in the contract upon which
Van Brunt, P. J., Williams and O’Brien, JJ., concurred.
Dissenting Opinion
(dissenting):
The respondent states the question submitted for decision as follows : “ Where a husband renders valuable services and stipulates with the person to whom the same are rendered that compensation therefor shall be made, not to him, but to his wife, is the wife entitled to enforce payment ? ” This, with the addition that the wife did not join in the agreement, and that there was no promise made directly to her, is an accurate statement of the question presented. The letter, which contained the evidence of the promise, is one written to Robert Gr. Dun by the defendant, in which the defendant says: “ It is understood between Mr. R. D. Buchanan and myself that in the event of the success of the proceedings now pending, or any which may be taken to practically set aside the thirty-fifth section of the will of my late uncle, Samuel J. Tilden, in view of the assistance looking to that end which has been and may be rendered by Mr. Buchanan, as well as yourself, that I will and do hereby become responsible for the payment to Mrs. Adelaide E. Buchanan, or her order, of the sum of fifty thousand dollars.” The services that Buchanan rendered to the defendant were in procuring Dun to loan to the defendant certain sums of money to be used in the litigation then pending to set aside the thirty-fifth section of the will of Samuel J. Tilden, the defendant being one of the next of kin of the said Til-den, and being entitled to a share in his estate in case this clause of the will was held void. This letter -was written in pursuance of a verbal agreement made between the defendant and Buchanan, by which the defendant, having asked Buchanan to induce Dun to make him further advances, said thatjhe had to have some more money, and had to have it right away ; and in order to get the money and have it light away, he, on his own personal behalf, having nothing to do with his brothers or sisters in any sense, would obligate himself personally to pay plaintiff $50,000, and to evidence that understanding, this letter was written. This letter was delivered to Dun and Dun subsequently advan'ced to the defendant over $10,000, which advances were secured by promissory notes of the defendant with interest, and they have since been repaid to Dun.
As before stated, the wife was not a party to the contract. There is no evidence that she had any knowledge of it at the time it was made, and as between her and the defendant there was no consideration for the agreement, and no promise was made with her. Dun himself swears that he loaned this money, induced by a statement that Tilden made to him (Dun) “ that if he was successful in breaking this will that Addie Tilden (the plaintiff) would share and share alike with all the rest of the heirs; that was the intentionthat “ it was his (the defendant’s) saying that Addie Tilden would come in share and share alike with all the rest of the heirs if he succeeded in breaking the will. * * * and it was subsequently to that conversation that he (defendant) wrote this letter.” The witness says that he cannot remember distinctly whether he talked with Buchanan about it or not, but that Buchanan first broached the subject to him of loaning this money to the defendant. The services that Buchanan rendered seem to have been his going to Dun and telling him that if he (Dun) advanced the money, and if the will was broken Mrs. Buchanan, the plaintiff, would come in share and share alike with the rest of them ; and upon the faith of that promise getting from Dun these various sums of money.
The right of the plaintiff to sue upon such a promise, made by her husband upon a consideration furnished by the husband, must depend upon the existence of a debt or duty owing by the promisee (the husband) to the party claiming to sue upon the promise (the wife). “ To give a third party who may derive a benefit from tire performance of 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 benefited, and some obligation or duty owing from the former
“ It is true there need be no privity between the promisor and and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the Obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim, by action, the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.” (Vrooman v. Turner, 69 N. Y. 283.) In that case, King v. Whitely (10 Paige, 465) and the cases that have followed it was held not to be overuled by Lawrence v. Fox. It is not claimed in this case that there was any enforcible debt or obligation existing in favor of the plaintiff against the promisee which, within the rule thus established, would entitle the plaintiff to maintain the action. The plaintiff, however, relies upon a series of cases in which the principle has been established that where a parent has made a contract with a third party by which such third party is to pay a sum of money to his child, the child can enforce that agreement at law. These cases have generally proceeded upon the theory that the agreement was one by Avhich the parent was making a distribution of his estate and property, and that where he gave to one child a certain portion of his property upon the promise of that child to pay to his other child or children a certain proportion to it, the other child or children could enforce that agreement. This principle seems to have been first discussed in the ease of Dutton v. Poole (2 Levinz, 210), decided in the time of Charles II. There the father of the plaintiff’s wife, being seized of certain lands, was paid to cut £1,000 worth of timber to raise a portion for his daughter, the plaintiff; and the defendant, who was the heir at law of the father, promised the father that he would pay the daughter £1,000. It was held that an action • brought by the
This case also holds that the natural affection of a husband for his wife, and the desire to make a sure maintenance for the wife in case she should survive the husband, is a meritorious consideration for a deed from the husband to the wife so as to justify a court of equity in sustaining and giving effect to the deed made directly between the husband and wife. And this case was cited with approval in Hunt v. Johnson (44 N. Y. 33), thus establishing the principle that the obligation of a husband to support his wife is sufficient to constitute a valuable consideration in a transaction between them, which a court of equity will enforce, notwithstanding it is void at law. And in the case of Todd v. Weber (95 N. Y. 181) it was held that a promise made by the father of an illegitimate child to the child’s relatives that if they would support and educate the child they would get back what money they had spent, because he intended to do well for her in his will, so that “ them that do well by her will he well paid,” was a contract upon which the child could sue, as it was made for her benefit as his child, and the court sustain an action to recover from the executors of the father the amount that the child’s relatives had paid out for her support and education.
The case of Durnherr v. Rau (135 N. Y. 219) does not apply. There was no agreement in that case by which the defendant promised to pay to the wife any sum of money due him, but a simple declaration in a deed that the wife of the husband, who was the plaintiff, reserved her right of dower in certain premises that the husband conveyed to the defendant. The right of dower was lost- by a foreclosure of mortgages upon the property, which were superior to the wife’s right of dower ; and the court held that the covenant reserving the right of dower was simply as to the right of dower in the land conveyed, which was the land subject to the mortgage, and that no obligation existed between the husband and the wife by which the husband was bound to pay off the mortgages so that her dower should be superior to them. Consequently, no-right of the wife existed to call upon the grantee of the deed to-
Here an entirely different question is presented. Services were rendered by the plaintiff’s husband. For the rendition of these services the defendant agreed to pay to the plaintiff a sum of money. Whatever right the plaintiff had to recover from the defendant the value of his services to the defendant he intended should vest in his wife, and that intention was expressed by the promise that the defendant made by which the value of the services rendered was liquidated, and tlio defendant promised that he would pay it to the wife. The intent, therefore, was clear to vest the wife with this demand that existed in favor of the husband as against the defendant. And the duty owing from the husband to the wife was sufficient to give her a legal claim to the benefit of the promise.
I think, therefore, that this judgment is right and should be affirmed, with costs.
Judgment reversed and new trial ordered, costs to appellant to abide event.