Schemerhorn v. Vanderheyden

1 Johns. 139

Opinion

Per Curiam.

As to the first objection, we are of opinion, that where one person makes a promise to another for the benefit of a third person, that third person may maintain an action on such promise. This was the doctrine of the King’s Bench, in the case of Dutton and wife v. Pool

* affirmed in error. ' The same principle has, since that time, been repeatedly sanctioned by the decisions of the English courts.†

But the second objection is well taken. The consideration for the assignment of the personal property of John C. Schemerhorn, is expressly stated in the deed of assignment itself, and the parties are thereby precluded from setting up any greater or different consideration.† To allow of parol evidence for that purpose, would be to extend, or substantially to vary the language of a written contract, Though the promise in question may have been made previously to the assignment, yet, after the execution of the instrument, we must presume that the father and son altered the consideration mentioned qt first, and finally acted upon that which is s.et forth in the assignment. Until the assignment was made, the promises not being ih writing, were not valid in law, and therefore, no right of action vested in the cestvy que trust, hi consequence of the first agreement between the father and son. That was a preliminary agreement, void by the statute of frauds, and was waived when the parties consummated their contract by the written instrument.

Judgment reversed.

2 Lev. 210.

Vide 3 Bos. & Pull. 149. in the notes to Pigot v. Thompson.

Blacks. 1249. P eston v. Merceau.