115 Wis. 566 | Wis. | 1902
The appellants first contend that when the respondents entered into the undertaking that Hunner would pay the judgment against Hunner, Moon, and Gilman they made a contract beneficial to him, and which he can now enforce under the line of cases mentioned in New York L. Ins. Co. v. Hamlin, 100 Wis. 17, 75 N. W. 421. It is not to be ■denied that if the respondents had paid and satisfied the judgment in question, in accordance with the terms of their undertaking, it would hare worked consequentially a benefit to Moon. “But it is not every promise made by one to another, from 'the performance of which a benefit may ensue to a third, which gives a right of actiop. to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.” Simson v. Brown, 68 N. Y. 355; Constable v. Steamship Co. 154 U. S. 51, 14 Sup. Ct. 1062. The principle above announced by the Hew York courts was further limited in Vrooman v. Turner, 69 N. Y. 280, in which it was said that, to give a third party who may derive a benefit from the performance of a promise an action, there must be: first, an intent by the promisor to secure some benefit to the third party; and, second, some privity between the two, the promisor and the party to be benefited, and some obligation or duty owing from the promisor to the latter, which would give him a legal or ■equitable claim to the benefit of the promise. This may be drawing the line a little closer than has ever been done in this state, but, whatever the rule may be, it is quite certain that, to enable the third party to enforce such contract, there must have been an intent on the part of the promisor to benefit him, •and some duty or obligation to carry out such promise.
Neither did the situation estop the sureties from taking an assignment of the judgment. See German Am. S. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123. Hunner claimed that, as between himself and Moon, the latter was bound in equity and good conscience to pay the judgment. The evidence contained in the bill of exceptions on Hunner’s appeal, and upon-which appellants’ motion was in part founded, shows that when the firm of Hunner, Gilman & Ob. was dissolved. Moon received all the firm assets, and agreed to pay all the firm debts. One of the grounds for relief set out in the affidavit of appellants.’ counsel was that Hunner ought to pay the judgment as against Moon. The court undoubtedly determined this question upon the testimony presented in the record. There seems, to be ample to support the conclusion, reached.
By the Court. — The order is affirmed.