McCown v. Schrimpf

21 Tex. 22

Opinion

Wheeleb, J.

The charge of the Court very properly submitted to the jury the inquiry whether the plaintiff was a party, or assented, to the contract between the defendant and Thayer for the purchase of the property on which the plaintiff held the mortgage ; and the jury, we think, were warranted by the evidence in finding the affirmative, and that the sale was made upon the mutual understanding and agreement of all the parties. In that view, there can be no question of the correctness of the charge, upon the other questions embraced in it. Nor can there be a question as to the right of the plaintiff to maintain the action. “ Where one person makes “ a promise to another for the benefit of a third person, that “ third person may maintain an action upon such promise.” (Schemerhorn v. Vanderhayden, 1 Johns. R. 189.) Nor is it necessary that the name of the person for whose benefit the promise is made, should, in terms, be used. It will be sufficient if he be in some measure pointed out and designated as the person intended. Thus, in a covenant with a man and his heirs or his executors, though the names of the heirs or executors do not appear in the deed, they can sue upon the covenant if broken. So where the defendants covenanted to pay to each and every person such sum or sums of money as the Constable should become liable for on account of any execution which might be delivered to him, it was held that an action of covenant might be maintained by a plaintiff in an execution delivered to such Constable for collection, and for the payment of which the Constable had become liable. (Fellows v. Gilman, 4 Wend. R. 414; 1 Chit. Pl. 4 and notes.) The defendant, by the terms of his contract, was to “ release all mortgages,” of which the plaintiff’s was one. He, therefore, according to the authorities cited, could maintain the action, it would seem, in a Court of Common Law. Undoubtedly he may in our Courts, where it is held that the suit may be brought either by the legal holder or the party beneficially interested in the contract.

The second instruction asked by the defendant was rightly refused, because embraced substantially, with-the proper qualification, in the general charge. The fourth instruction asked was also rightly refused, because abstract, and not warranted by the evidence. The promise of the defendant. was not without a consideration, as the instruction assumed. There is no error in the judgment and it is affirmed. •

Judgment affirmed.