Scott's Administrators v. Gil

19 Iowa 187

• Court: Supreme Court of Iowa
• Decided: June 28, 1865
• Status: Published

Opinion

Lowe, J.

j. coirffieneñt °p£son.d

The point for our determination is, whether the petition states facts which would entitle the plaintiff to a personal judgment,.as well as a judgment °f foreclosure on lots mentioned therein, against Potter and Barlow.

When they purchased the lots of Gill & Howe, they undertook and agreed to pay the purchase-money due from said Gill & Howe to Scott. This agreement, admitted by the demurrer, fixes upon them a direct liability in favor of Scott. And this, as the cases show, upon the broad principle, that if one person make a promise to another for the benefit of a third person, that the third person may maintain an action on the promise. This case is not different in principle, although it is somewhat in its facts, from that of Thompson v. Bertram et al, 14 Iowa, 76; Corbett v. Waterman, 11 Iowa, 87; Moses v. The Clerk of Dallas District Court, 12 Iowa, 140, also Burr v. Beers, 24 N. Y., 178, and the cases there cited.

If the doctrine laid down in these cases is sound, as we still believe that it is, the demurrer should have been overruled, and a judgment rendered also against Potter and Barlow, unless some other valid defense is interposed.

It is true the plaintiffs in their petition seek to make effectual the liability of Potter & Barlow through the auxiliary process of a garnishment. Whether this could be done in connection with or in aid of their bill, is quite immaterial for us to determine, as this part of the petition may be treated as surplusage, and still the prayer of the petition is sufficiently broad under the facts stated in the bill, to entitle the plaintiffs to the relief they ask, if they should be satisfactorily established by plaintiffs. The order sustaining the demurrer will be reversed, and the cause remanded, with leave to the defendant to answer, &c.

Reversed.