Anthony v. Herman

14 Kan. 494

• Court: Supreme Court of Kansas
• Decided: January 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action commenced in the district court of Cloud county, by D. R. Anthony as plaintiff, on a certain bond of which the following is a copy:

“Know all men by these presents, that I, Mark J. Kelley, of Osborne county, Kansas, in consideration of R. F. Herman, B. V. Honey, F. K. Teter, David Keller, and E. Kennedy assuming the payment of a certain chattel mortgage given by the said Mark J. Kelley to D'. R. Anthony, dated August 20th 1871, and filed August 30th 1871, in Cloud county, Kansas, and holding the said Mark J. Kelley harmless and indemnified therefrom, which by the said R. F. Herman, B. V. Honey, F. K. Teter, David Keller and E. Kennedy is agreed, as is shown by their becoming parties hereto and signing these presents, and in consideration of one dollar in hand paid, do hereby sell, assign, transfer and set over unto the said R. F. Herman, B. Y. Honey, T. K. Teter, David Keller and E. Kennedy, the following described property, viz., one Washington hand-press, and all the type, being about four hundred pounds of type, and one lot of office fixtures, being the same which were formerly in and about the office- of the “Republican Yalley Watchman,” heretofore published at Clyde, Cloud county, Kansas. Witness our

hands and seals at Concorc ia, June 24th, 1872.

R. F. Herman. [Seal.] Mark J. Kelley. [Seal.]

B. V. Honey. [Seal] F. K. Teter. [Seal.]

David Keller’ [Seal.] E. Kennedy. [Seal.]

A demurrer was sustained to the petition, and of this ruling plaintiff in error complains. No brief has been filed by counsel for defendants in error, so we are not advised as to the point upon which' the district court placed its ruling. Counsel for plaintiff in error states in his brief that the only question in the case was whether the promise of the defendants, as set forth in the bond, was sufficient to sustain an action by the plaintiff; and it seems probable that the ruling was based upon this question. In it we think the court erred. That the defendants received ample consideration, is evident. Indeed, if none were expressed, the promise in writing imports a consideration, under our statutes. For this consideration they agreed to assume the payment of the chattel mortgage to plaintiff. True, the consideration of this promise did not proceed from the plaintiff; but notwithstanding some conflict in the authorities, we think the rule is settled, that an action will lie on a promise made by a defendant upon valid consideration to a third party for the benefit of the plaintiff, although the plaintiff was not, privy to the consideration. 1 Smith’s Leading Cases, 385, 388; Schermerhorn v. Vanderheyden, 1 Johns., 140; Cleaveland v. Farley, 9 Cowen, 639; Barker v. Bucklin, 2 Denio, 45; Delaware & Hudson C. Co. v. Westchester Bank, 4 Denio, 97; Lawrence v. Fox, 20 N. Y., 268; Arnold v. Lyman, 17 Mass., 400; Hall v. Marston, 17 Mass., 575; Carnegie v. Morrison, 2 Metc., 381; Brewer v. Dyer, 7 Cush., 337. But see on the other hand, Mellen, Adm’x, v. Whipple, 1 Gray, 317. It may be proper to state that Kelley, one of the parties to this agreement, is not party to the controversy in this court, he not having joined in the demurrer below.

The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer. .

All the Justices concurring.