118 Va. 553 | Va. | 1916
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 essen
There was a demurrer to the declaration, which was over
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
There is no error in the judgment, and it will be affirmed.
Affirmed.