Thomas Mfg. Co. v. Prather

Decision Date29 January 1898
Citation44 S.W. 218
CourtArkansas Supreme Court

Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.

Action by D. J. Prather against the Thomas Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Cockrill & Cockrill, for appellant. W. S. & Farrar L. McCain, for appellee.


Appellee, who was a physician and surgeon, sued appellant for $300, the alleged value of professional services rendered by him to one Brown, an employé of appellant. Appellee alleges that appellant, for a valuable consideration, entered into a contract with Brown, whereby it was to furnish him medical attendance in case of an accidental injury while engaged in appellant's business. That part of the contract which appellee claims was for his benefit, and upon which he bases his right to recover, is as follows: "This is to certify that we are insured in a large and reliable insurance company against accidents resulting in bodily injury or death to J. R. Brown and other employés, so that we can agree that the above-named employé shall receive from us, in case of an accident received by him when actively engaged in our business, the following: (1) In case of an accidental injury a sum not exceeding," etc., "and furnish medical attendance." The answer denied liability. The court found the following facts, so far as may be necessary to set them out, to wit: "That the defendant company entered into a contract by which it, in case of accident, while in its employment, to one Brown, its employé, would, among other things, furnish him a physician; that on the 14th day of September, 1892, and while said contract was in force, said Brown was injured while in defendant's employment; that the plaintiff, a physician, was as such called in by Brown, and waited on him, and rendered him the services sued for, extending from September 16, 1892, to April 1, 1893, to the value of $300; that this employment of plaintiff as physician was known to defendant company, and by it, through its officers, fully approved." Appellant asked the court to find as a fact that "there was no agreement made by the Thomas Manufacturing Company with Brown to pay Dr. Prather, or any other physician, for medical attendance upon said Brown," which the court refused. And appellant asked the court to declare the following as the law: "A contract entered into upon the terms proposed in the card aforesaid would not inure to the benefit of the plaintiff, and if the court finds that the defendant made, and Brown accepted, the contract there proposed, the plaintiff cannot recover;" which the court refused, holding that "the contract entered into by defendant company with Brown, and services rendered by plaintiff, with the assent and approval of defendant company, created a liability to plaintiff." Exceptions to the ruling of the court upon these points present the only question we need consider, to wit, was the contract for appellee's benefit?

This court long ago ruled, in line with the doctrine which generally obtains in this country, that where a promise is made to one upon a sufficient consideration, for the benefit of another, the beneficiary may sue the promisor for a breach of his promise. Chamblee v. McKenzie, 31 Ark. 155; Talbot v. Wilkins, Id. 411; Hecht v. Caughron, 46 Ark. 132. This doctrine operates as an exception to the elementary rule of law, that a stranger to a simple contract, from whom no consideration moves, cannot sue upon it. National Bank v. Grand Lodge, 98 U. S. 123; Mellen v. Whipple, 1 Gray, 317; Greenwood v. Sheldon, 31 Minn. 254, 17 N. W. 478. Therefore it should be applied cautiously, and restricted to cases coming clearly within its compass. The following prerequisites for the application of the doctrine were announced by the court of appeals of New York in Vrooman v. Turner, 69 N. Y. 280, viz.: "There must be — First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, — the promisee and the party to be benefited, — and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally." In Durnherr v. Rau, 135 N. Y. 222, 32 N. E. 50, the court say: "It is not sufficient that the performance of the covenant may benefit a third person. It must have been entered into for his benefit, or, at least, such benefit must be the direct result of performance, and so within the contemplation of the parties." See, also, American Exch. Bank v. Northern Pac. R. Co., 76 Fed. 130. "Of course, the name of the person to be benefited by the contract need not be given, if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated." Burton v. Larkin, 36 Kan. 250, 13 Pac. 400. Applying the foregoing principles to the contract under consideration, it is manifest, from the nature and terms of the contract, that neither the appellee individually, nor any of a class to which he belonged, was intended to be considered as primarily the party in interest. Austin v. Seligman, 18 Fed. 523; Simson v. Brown, 68 N. Y. 355, 361, 362; Wright v. Terry, 23 Fla. 160, 2 South. 6; Greenwood v. Sheldon, 31 Minn....

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