Burton v. Larkin

• Decision Date: 04 March 1887
• Citation: 36 Kan. 246,13 P. 398
• Parties: OSCAR A. BURTON v. ARTHUR LARKIN
• Court: Kansas Supreme Court

13 P. 398

36 Kan. 246

OSCAR A. BURTON v. ARTHUR LARKIN

Supreme Court of Kansas

March 4, 1887

Error from Ellsworth District Court.

ACTION by Larkin against Clark and another, to recover for goods alleged to have been sold and delivered by plaintiff to defendants. Trial at the April Term, 1885, and judgment for plaintiff for $ 469.46. The defendant Burton brings the case here. The opinion states the facts.

Judgment reversed and cause remanded.

J. B Johnson, and J. D. McFarland, for plaintiff in error.

Lloyd & Evans, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Arthur Larkin against Howes B. Clark and Oscar A. Burton, for $ 461.26, for goods, wares merchandise and chattels alleged to have been sold and delivered by the plaintiff to the defendants. The action was tried by the court and a jury, and the court instructed the jury to find for the plaintiff, and the jury so found, assessing the amount of the plaintiff's recovery at $ 469.46, and the court rendered judgment accordingly. To reverse this judgment, Burton, as plaintiff in error, brings the case to this court, making Arthur Larkin the defendant in error.

It appears that Burton is, and has been for many years, a resident of the state of Vermont, and at one time owned a large amount of real estate in Ellsworth county, Kansas; that Clark is his nephew; that Burton sold said real estate to Clark on credit, retaining the legal title in himself as a security for the purchase-money, and also at various times loaned Clark money for the purpose that Clark might cultivate the land and carry on the business of farming and stock-raising upon the same. Clark had a family, and he with his family resided upon the land. About once a year Burton and Clark had settlements of their affairs, and at each time entered into a new agreement, Burton at all times retaining the legal title to the land in himself, as a security for the payment of the purchase-money and for the money advanced by him to enable Clark to carry on the aforesaid business. On November 22, 1883, they had a settlement, and entered into a written agreement, similar to agreements previously entered into between them, whereby Clark agreed to pay Burton $ 30,650, in such amounts and at such times as he could, with interest thereon at the rate of seven per cent. per annum; and upon full payment Burton was to convey to Clark the aforesaid real estate. This agreement also contained some stipulations not necessary to mention. It also contained the following stipulation, which. constitutes the only foundation for the present action as between Larkin and Burton, to wit:

"It is also agreed and understood that the said party of the first part [Burton] shall furnish said party of the second part [Clark] such sums of money as may be necessary to pay the current expenses of said second party, it being understood that said second party shall render a monthly account of expenses to said first party."

After this written agreement was made, and prior to the commencement of this action, which was on December 26, 1884, the goods, wares, merchandise and chattels for which this action was brought were sold and delivered by Larkin to Clark, and to Clark only. It is not claimed on the part of Larkin that they were in fact sold or delivered to Burton, or to anyone at his instance or request, or that Burton received any benefit from them, or that the credit for the same was given to Burton, or that he in any manner became liable for them, except by reason of the aforesaid stipulation contained in the aforesaid written contract between Burton and Clark. It is claimed, however, that by virtue of this stipulation Burton is liable.

It is unquestionably true that in this state a person, for whose benefit a promise to another upon a sufficient consideration, is made, may maintain an action on the contract in his own name against the promisor. (Anthony v. Herman, 14 Kan. 494; Harrison v. Simpson, 17 id. 508; Center v. McQuesten, 18 id. 476; K. P. Rly. Co. v. Hopkins, 18 id. 494; Floyd v. Ort, 20 id. 162; Life Assurance Society v. Welch, 26 id. 641, 642; Brenner v. Luth, 28 id. 581.) And this same doctrine prevails in many of the other states. It is said in a note to the case of Shamp v. Meyer, 24 Cent. L. J., 111, 112, as follows:

"The rule that a third party, for whose benefit a contract was made may sue the promisor on the contract, though the promise was not made to him and the consideration did not move from him, seems to have met with approval in England at one time; but the contrary rule is now well established.

"The later English rule has been adopted by several American courts, but generally with the exception that where one receives money from another under promise to pay it to a third person, or where one owing money to another promises to pay it to a third person, such third person may sue on the contract. Yet, where any contract is made for the benefit of one, a stranger to the contract, the weight of American authority is in favor of the rule which allows such third party to maintain an action on the contract, or advantage may be taken of it by way of set-off."

But there are limitations upon this rule; or rather, the rule is not so far extended as to give to a third person who is only indirectly and incidentally benefited by the contract a right to sue upon it. In the case of Simson v. Brown, 68 N.Y. 355, et seq., the following language is used:

"It is not every promise made by one to another from the performance of which a benefit may inure to a third,...