Sec 785

In this country the preponderance of authority is to the effect that a party may bring suit on a simple contract to vides as follows: " sec 74. The benefit of third parties may be the object of a contract. sec 75. The third party, however, can only sue on a contract to which he was neither mediately nor immediately a party, when he has acceded to it with the assent of the other parties. sec 76. Until this takes place, a contract for his benefit may be modified or cancelled by the contracting parties."

In the French Code Civil, we have the following: "Art. 1165. Les conventions n'ont d'effet qu' entre les parties contractantes; elles ne nuisent point aux tiers, et elles ne leur profit-ent que dans les cas prevu par l'art. 1121. Art. 1121. On peut pareille-ment stipuler au profit, d'un tiers, lorsque telle est la condition d'une stipulation que l'on fait pour soi-meme ou d'une donation que l'on fait a un autre. Celui qui a fait cette stipulation ne peut plus la revoquer, si la tiers a declare vouloir en profiter."

In Austria (Gesetzbuch, sec 881) no person whatever can sue on a contract to which he is not a party.

A review of the controversy is given by Dr. Joseph Unger, in 10 Ihering's Jahr. (1871) pp. 1 et seq. He begins by attributing the strictness of the Roman rule to the jealousy with which the Romans regarded all attempts to limit personal independence. Not only could no man be compelled to accept a loan or even gift unless made on his own prior request, but agency was restricted to matters in which the agent was the principal's servant without discretion. The genius of Rome was individual energy organized by law. "That individual activity governs the world; that each man carries his rights in his own hands; that each man must protect himself by himself; these are the quintescence of the old Roman system." (Ihering, Geist des R. R. 1, 109.) Under this system the individual, so Unger argues, begins and terminates his own civil liability. Self-employment, self-support, self-vindication, self-protection, and with them self-seeking and self-love were the prime factors in Roman life. The acquisition of rights depended exclusively on the individual activity and even on the individual initiation of the party to be benefited. Hence judicial process by the Roman law is virtually organized self-support. The fundamental principle of Roman jurisprudence is that each person acts for himself; he must act in his own name, in his own interest. The principle was not placed exclusively on ethical or utilitarian grounds. It was not regarded as we regard it, as a suggestion of prudence, "aide-toi, et le ciel t'aidera." It was made an absolute rule of jurisprudence - he who acts must act for himself. Each individual was limited to his own concerns, was required personally to lay the basis of his own rights. One of the consequences of this position was the rule that rights could not be acquired through agents themselves capable of independent business activity. - "Per liberas personas, quae in potestate nostra non sunt, acquiri nobis nihil potest." Paul. R. S. V. 2, sec 2. See further I. 126, sec 2 D. de V. O. 45, 1; L. 1 C. per quas person. 4. 27. It is true that this gave way, so far as agency was concerned, to a gradual expansion of the right of representation through parties who would carry out absolutely the principal's views. But the principle of the Roman law was fixed that parties must act virtually which he is not a party when it contains a provision for his benefit. In the supreme court of the United States this view is expressly affirmed.1 "The right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country."2

In some states it is held that a third party can sue on a contract for his benefit.

1 Hendrick V. Lindsay, 93 U. S. 143.

2 This, however, is somewhat restricted in National Bank V. Grand Lodge, 98 U. S. 123, cited supra, sec 784. As sustaining the conclusion stated in Hendrick V. Lindsay, as above given, see Norwood V. De Hart, 30 N. J. Eq. 412; Joslin V. Car Co., 7 Vroom, 141; Ramsdale V. Horton, 3 Barr, 330;.

Beers V. Robinson, 9 Barr, 229; Kountz V. Holthouse, 85 Penn. St. 235; Justice V. Tallman, 86 Penn. St. 147; Merriman V. Moore, 90 Penn. St. 80; Thompson V. Thompson, 4 Oh. St. 333; Davis V.

Calloway, 30 Ind. 112; Helms V. Kearns, 40 Ind. 124; Miller V. Bil-lingsly, 41 Ind. 489; Eddy V. Roberts, 17 Ill. 505; Beasley V. Webster, 64 Ill. 458; Snell V. Ives, 85 Ill. 279; Donkersley V. Levy, 38 Mich. 54; Johnson V. Collins, 14 Iowa, 63; Bas-sett V. Hughes, 43 Wisc. 319; Sanders V. Clason, 13 Minn. 379; Jordan V. White, 20 Minn. 91; Welsh V. R. R., 25 Minn. 314; Thompson V. Gordon, 3 Strobh. 196; Brown V. O'Brien, 1 Richards, 268; Mason V. Hall, 30 Ala. 599; Carver V. Eads, 65 Ala. 190; Meyer V. Lowell, 44 Mo. 328; Rogers V. Gosnell, 58 Mo. 589; New Orleans St. Joseph's Assn. V. Magnier, 16 La. An. 338; Morgan V. Mining Co., 37 Cal. 534; Lehow V. Simonton, 3 Col, 346; Green V. Richardson, 4 Col. 584; Smith V. Mayberry, 13 NeV. 427. For suits of this class for money had and received, see supra, sec 728.

In New York, the right of the beneficiary to sue is admitted in cases where the contract was made with the intention to benefit the plaintiff, and there was a duty owing him from the defendant. Lawrence V. Fox, 20 N. Y. 268, of which case Judge Rapallo, in Garnsey V. Rogers, 47 N. Y. 233, said: "I do not understand that the case of Lawrence V. Fox has gone so far as to hold that every promise made by one another, from whom the consideration moves for the benefit of a third, may be sued on by the party for whose benefit the promise was made." Elliott, J., Clodfelter V. Hulett, 72 Ind. 141, citing Raymond V. Pritchard, 24 Ind. 318; Josselyn V. Edwards, 57 Ind. 212; Campbell V. Patterson, 58 Ind. 66; Carter V. Zenblin, 68 Ind. 436; Fisher V. Wilmoth, 68 Ind. 449; see Loeb V. Weiss, 64 Ind. 285.