Shamp v. Meyer

• Decision Date: 07 October 1886
• Citation: 29 N.W. 379,20 Neb. 223
• Parties: SHAMP v. MEYER.
• Court: Nebraska Supreme Court

20 Neb. 223

29 N.W. 379

SHAMP

v.MEYER.

Supreme Court of Nebraska.

October 7, 1886.

Error from Lancaster county.

A. J. Cornist and O. P. Mason, for plaintiff.

Sawyer & Snell, for defendant.

According to many of the authorities, an action on a contract cannot be maintained by a third party for whose benefit it was made. Tweddle v. Atkinson, 1 Best & S. 393; Halsted v. Francis, 31 Mich. 113;Carr v. Bank, 107 Mass. 45; Exchange Bank v. Rice,Id. 37; Morrill v. Lane, 136 Mass. 93;Anderson v. Fitzgerald, 21 Fed. Rep. 294; Warren v. Batchelder, 15 N. H. 129;Hall v. Huntoon, 17 Vt. 244;Meech v. Ensign, 49 Conn. 191; S. C. 44 Amer. Rep. 225; Clapp v. Lawton, 31 Conn. 95; Whart. Cont. § 787.

At least the action cannot be maintained when the third party is not the one for whose benefit the contract was primarily made. Garnsey v. Rogers, 47 N. Y. 233;Vrooman v. Turner, 69 N. Y. 280;Lake Ontario S. R. v. Curtiss, 80 N. Y. 223;Austin v. Seligman, 18 Fed. Rep. 519; Dow v. Clark, 7 Gray, 198;National Bank v. Grand Lodge, 98 U. S. 123;Merrill v. Green, 55 N. Y. 270;Pardee v. Treat, 82 N. Y. 385;Mackintosh v. Fatman, 38 How. Pr. 145.

MAXWELL, C. J.

This action was brought by the plaintiff against the defendant in the district court of Lancaster county. The defendant demurred to the petition, the demurrer was sustained, and the action dismissed.

The plaintiff alleges in his petition, in substance, that in November, 1880, the plaintiff, T. B. Dawson, and J. A. Wallingford constituted the firm of Dawson, Shamp & Co., doing business at Lincoln; that the said firm was indebted to various persons and firms as follows: As guarantors upon the note of Peter Davy to the La Belle Wagon Company in the sum of $95.76; to the R. Elwood Manufacturing Company in the sum of $157; to Hurst, Doan & Co. in the sum of $37.60; to the La Belle Wagon Company, as guarantors on the notes of one Henry Overstake, about the sum of $287.50; to Saberling, Miller & Co. in about the sum of $60, as guarantors upon the note of W. Lawson; to the R. Elwood Manufacturing Company about the sum of $35, as guarantors upon the note of one L. W. Ward; to the La Belle Wagon Company, upon their own note, in the sum of $257.71 and $57.71; and the sum of $19 to the Perkins Plow Company; that afterwards, and on the ninth day of November, 1880, the plaintiff sold all his interest in said partnership to one John Geisler, (of the firm of Dawson, Wallingford & Geisler,) assuming and agreeing to pay all said debts, and save the plaintiff harmless; that in December, 1880, said Wallingford sold and transferred his interest in said firm to Dawson, Geisler, and one C. Nohring, in part consideration of which said three persons agreed to pay all the debts of said Dawson, Wallingford & Geisler, and save said Wallingford harmless; that afterwards Dawson sold and transferred all his interest in said partnership business, good-will, and effects to Nohring, Geisler, and the defendant Meyer, in part consideration of which said persons assumed and agreed to pay and save said copartnership harmless from all the debts and liabilities of said copartnership of Dawson, Nohring & Co., and said persons continued in business as Nohring, Geisler & Meyer; that in March, 1882, said last-named firm was dissolved by the withdrawal therefrom of Geisler, and the transfer by him to Nohring and Meyer of all his interest in said firm, in part consideration whereof said Nohring & Meyer agreed to pay and did assume all the indebtedness of Nohring, Geisler & Meyer; that in October, 1882, the firm of Nohring & Meyer was dissolved, the defendant receiving and retaining in severalty all the business, effects, and good-will of said last-named copartnership, and, in part consideration thereof, assuming and agreeing to pay all the debts and liabilities of said last-named firm. But notwithstanding the premises, neither the said defendant, nor the said Dawson, nor Wallingford, nor Nohring, nor Geisler, nor either of said copartnerships, have ever paid said indebtedness, or any part thereof; that by reason of the premises said plaintiff has been compelled, by the creditors of Dawson, Shamp & Co., to pay all of the debts above set forth, and neither said defendant, nor any of said persons or copartnerships, have repaid to plaintiff said sums of money, or any part thereof.

If the allegations of the petition are true, Meyer assumed the payment of the obligations of the firm of Nohring & Meyer, one of which was the payment of the debts which the plaintiff afterwards was compelled to pay. Can he maintain an action against Meyer on this contract to which he was not a party, but which contains a provision for his benefit?

This question was before the supreme court of Nevada in Miliani v. Tognini, 7 Pac. Rep. 279, and it was held that a party may maintain an action on a simple contract to which he was not a party, upon which he was not consulted, and to which he did not assent, when it contains a provision for his benefit.

In Lawrence v. Fox, 20 N. Y. 268, one Holly, in November, 1857, at the request of the defendant, loaned and advanced to him $300, stating at the time that he owed...