274 F. 918 | 9th Cir. | 1921
(after stating the facts as above).
“A contract, made expressly for tlie benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”
The statute came before the Supreme Court of Montana for construction in McDonald v. American Nat. Bank, 25 Mont. 456, 65 Pac. 896, where the court said:
“To come within the meaning and scope of the section, the (executory) contract made expressly for the benefit of a third person must be one whereby the promisor undertakes to pay or discharge some debt or duty which the promisee owes to the third person; in other words, the third person must sustain such a relation to the contracting parties that a consideration may be deemed to have passed from him to the promisee which raises the implication of a promise from the' promisor directly to himself. There must be a consideration passing from the third person by virtue of which he may assert the existence of a promise in his favor.”
That construction of the statute was followed in Tatem v. Eglanol Mining Co., 45 Mont. 367, 123 Pac. 28. It may be conceded that the rule so established in Montana as to the rights of third persons for whose benefit contracts have been made is opposed to the weight of modern authority. 6 R. C. L. 884; 13 C. J. 705. But it rests upon the construction of a state statute, and it is binding upon this court. In the case at bar, Mrs. Smith is the sister of the plaintiff, but that relation does not raise the implication that she owed a duty to the plaintiff which the defendant agreed to discharge, nor does it make the defendant’s undertaking a promise to pay or discharge a debt which Mrs. Smith owed to the plaintiff. Nor was there any consideration passing from the plaintiff by virtue of which she may assert the existence of a promise' in her favor.
The judgment is affirmed.
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