Lehow v. Simonton, 3 Colo. 346

3 Colo. 346 | Colo. | 1877

Wells, J.

1. Whatever may be the general rule in the case of a plea, qjtjs certain that the declaration in counting upon a promise good in parol by the common law, need not show a compliance with the requisites of the statute of frauds. The statute prescribes a rule of evidence, and not a rule of pleading. Steph. Pl. 313,* 374 *; Brown on Stat. of Frauds, § 505; 1 Chit. Pl. (16th Am. Ed.) 245.* Now the plea of set-off is in the nature of a declaration, and in respect to the degree of certainty required, is governed by the same rule. Waterman on Set-off, § 646. The question, whether the undertaking mentioned in the plea is within the statute of frauds, does not arise.

2. It seems to be the settled doctrine of the courts of England at this day, that a stranger to the consideration cannot enforce the contract by an action thereon in his own name, though he be avowedly the party intended to be benefited. 1 Chit, on Cont. (11th Am. Ed.) 74. In this country there are many cases which assert the same rule. Salmon v. Brown, 6 Blackf. 347; Britzell v. Fryberger, 2 Cart. 176; Clapp v. Lawton, 31 Conn. 103; Conklin v. Smith, 7 Ind. 108; Mellen v. Whipple, 7 Gray, 321; Robinson v. Reed, 47 Penn. St. 115; Exchange Bank v. Price, 107 Mass. 42; Warren v. Bachelder, 15 N. H. 129; McLaren v. Hutchison, 18 Cal. 81, and some others which are not accessible to us.

But as respects simple contracts, the decided preponderance of American authority sustains the action of the beneficiary. 1 Pars, on Cont. 467 *; 1 Chit. Pl. (16th Am. Ed). 5 n. (n. 1); 2 Greenl. Ev., § 109; Thorp v. The Keokuk Coal Co., 48 N. Y. 253; McDowell v. Lear, 35 Wis. 175; Bowhannan v. Pope, 42 Me. 93; Joslyn v. N. J. Car Spring Co., 36 N. J. L. 141; Myers v. Lowell, 44 Mo. 328; Saunders v. Clason, 13 Minn. 379; Thompson v. Gordon, 3 Strobh. (S. C.) 196; Scott’s Adm’r v. Gill, 19 Ind. 187; Allen v. Thomas, 3 Metc. (Ky.) 198; Draughan v. Bunting, 9 Ired. 10; Hendricks v. Lindsay, 3 Otto, 143; Beasley v. Webster, 64 Ill. 458; In re Rice, 9 Bankr. Reg. 375; Bagaley v. Waters, 7 Ohio St. 369, and manyl|thers in the reports of the same courts, are to this effect. vTo harmonize the decisions is impossible. The doctrine of those last quoted, whi^^onfessedly an anomaly, seems to us the more convenient. It accords the remedy to the party who in most instances is chiefly interested to enforce the promise, and avoids multiplicity of actions. That it should occasion injustice to either party seems to us impossible.

3. The plea fails to show to whom the promises relied upon were made ; but this is equivalent to stating a promise to the party from whom the consideration proceeded. 1 Chit. Pl. (16th Ed.) 309* (k); and according to Delaware and Hudson Canal Co. v. Westchester Bank, 4 Denio, 97, this is the proper form of the averment.

Judgment reversed with costs, and cause remanded.

Jteversed.