McLaren v. Hutchinson

Opinion — Cope

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

In this case the defendant purchased of one Beach a tract of land, and, as a part of the consideration, agreed to pay certain debts specified in the complaint. Neither the plaintiff nor any of the personS to whom the debts were owing were parties to this agreement, and it does not appear that they ever assented to or attempted in any manner to connect themselves with the transaction prior to the commencement of the suit. The plaintiff is the present holder of these debts, and the question is whether he can maintain an action against the defendant for their recovery. It is clear, we think, that he cannot. There is no privity between the parties, and the legal position of the plaintiff is that of a stranger to the agreement. The defendant is liable upon the agreement alone and Beach is the only party who can maintain an action for its violation. We are not aware of any principle upon which such an action can be maintained by the plaintiff. If there had been a novation of the indebtedness by substituting the liability of the defendant for that of Beach, or if the transaction had been assented to so as to give to the agreement the effect of an equitable assignment, the plaintiff would have some foundation to stand upon; but as it is, his claim is without any legal support whatever.

Judgment reversed and cause remanded.