Scott v. Pilkington

15 Abb. Pr. 280

Opinion

By the Court.

*—Gould, J.

It would seem that the facts found by the referee are sufficient to give a right to the plaintiffs to recover. And it is not our duty to reverse the judgment, though the referee has not given (in his findings) an accurate statement of the legal principles that favor the recovery. He has found, as facts, that the defendants’ letter to Fleming & Alden was written to enable them to show it to others, and thereby give credit to the bills drawn in conformity with it; that it was shown to the plaintiffs, and that by it they were induced to buy these bills.

Such facts make a case of a promise made to one party (Fleming & Alden), for the benefit of another (any one who might, on the faith of it, take such bill); and our books are full of cases holding that such third party, though a stranger to the actual promise, may recover in a suit directly against the promisor, and founded on the promise.

As to the form of this action, we have, under the Code, no trouble between actions on the case, and those directly on the contract. If the facts stated in the complaint give a right of action, the plaintiffs can recover on that complaint.

The statute of this State, making a promise to accept an actual acceptance, does not oust the common-law remedy to which the facts of any particular case may entitle a party. And whatever may be the laws of England on such a case, it is not necessary for us, in this case, to follow any law but our own; and so doing would affirm this judgment.

Judgment affirmed, with costs.

Present, Clerke, P. J., Gould and Ingraham, JJ.