one joint, or joint and several debtor without authority from his co-debtors cannot revive the obligation. Thus after dissolution of a partnership, one partner cannot bind others by new promise or part payment.32 And there seems no reason, on principle or authority, to give any greater force to the acts of a joint debtor, who is not a partner, in the absence of evidence showing actual authority.33 There seems, on principle, little reason to distinguish a case where the new promise or part payment is made before the statute has run. During the continuance of a partnership there can be no doubt of the implied authority of one partner thus to prolong the statutory period; 34 but there seems no reason to infer such authority in the case of a joint debtor who is not in partnership with his co-debtors, 35 or in case of a partner after dissolution. It is true that a joint debtor, even in these cases, may properly make full payment or promise of it, and if he pays exact contribution from his co-debtor because the debtor who paid was bound to pay the joint obligation. But it is the inference 32 Bell v. Morrison, 1 Pet. 351, 373–4, 7 L. Ed. 174; Wilson v. Torbert, 3 Stew. 296, 21 Am. Dec. 632; Espy v. Comer, 76 Ala. 501; Burr v. Williams, 20 Ark. 171; Bissell v. Adams, 35 Conn. 299, 302; Conkey v. Barbour, 22 Ind. 196; Merritt v. Pollys, 16 B. Mon. 355, 357; Walsh v. Cane, 4 La. Ann. 533; Ellicott v. Nichols, 7 Gill, 85, 48 Am. Dec. 546; Newman v. McComas, 43 Md. 70; Wilmer v. Gaither, 68 Md. 342, 345, 12 Atl. 253; Whitney v. Reese, 11 Minn. 138; Van Kueren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 322 (overruling Smith v. Ludlow, 6 Johns. 267); Bloodgood v. Bruen, 8 N. Y. 362; Reppert v. Colvin, 48 Pa. 248 (unless the promisor is liquidating partner of a solvent firm); Fisher v. Tucker, 1 McCord Ch. 169; Steele v. Jennings, 1 McMull. 297; Belot's Ex. v. Wayne, 7 Yerg. 534; Cocke v. Hoffman, 5 Lea, 105, 111, 40 Am. Rep. 23, and cases infra, n. 36, holding that even before the statute has completely run, one debtor has no power to bind others. 33 Lowther v. Chappell, 8 Ala. 353, 42 Am. Dec. 643; Myatts v. Bell, 41 Ala. 222; State Loan &c. Co. v. Cochran, 130 Cal. 245, 255, 62 Pac. 466; Rogers v. Burr, 105 Ga. 432, 447, 31 S. E. 438, 70 Am. St. Rep. 50; Kallenbach v. Dickinson, 100 Ill. 427, 39 Am. Rep. 47; Dickerson v. Turner, 12 Ind. 223, 230; Bottles v. Miller, 112 Ind. 584, 14 N. E. 728; Hayman v. Lambden, 97 Md. 33, 54 Atl. 962; Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553; Mayberry v. Willoughby, 5 Neb. 368, 25 Am. Rep. 491; Omaha Sav. Bank v. Simeral, 61 Neb. 741, 86 N. W. 470; Exeter Bank v. Sullivan, 6 N. H. 124; Bush v. Stowell, 71 Pa. 208, 10 Am. Rep. 694; Muse v. Donelson, 2 Humph. 166, 36 Am. Dec. 309. 34 Tate v. Clements, 16 Fla. 339, 354, 26 Am. Rep. 709; Mann v. Locke, 11 N. H. 246, 250; Tappan v. Kimball, 30 N. H. 136, 141. 35 Hayman v. Lambden, 97 Md. 33, 54 Atl. 962. of a new promise by the other debtor which is here in question; and while a new promise on the part of the one who pays may properly be inferred from a part payment, or may be made expressly by one joint debtor, no reason can be found why this promise should bind any one but the debtor who makes it. This view prevails in many States, 36 but other States hold the new promise or payment effectual to prolong the debt against all,” though if the debt were barred when the new 36 Myatts v. Bell, 41 Ala. 222; Curry v. White, 51 Cal. 530; Terry v. Platt, 1 Pennewill, 185, 40 Atl. 243; Tate v. Clements, 16 Fla. 339, 26 Am. Rep. 709; Rogers v. Burr, 105 Ga. 432, 447, 31 S. E. 438, 70 Am. St. Rep. 50; McLin v. Harvey, 8 Ga. App. 360, 69 S. E. 123; Boynton v. Spafford, 162 Ill. 113, 44 N. E. 379, 53 Am. St. Rep. 274; McDonald v. Weidmer, 103 Ill. App. 390; Yandes v. Lefavour, 2 Blackf. 371; Bottles v. Miller, 112 Ind. 584, 14 N. E. 728; Mozingo v. Ross, 150 Ind. 688, 50 N. E. 867, 41 L. R. A. 612, 65 Am. St. Rep. 387; Theis v. Wood, 238 Mo. 642, 142 S. W. 431 (a decision under the law of Kansas); Terrell v. Rowland, 86 Ky. 67, 81, 4 S. W. 825; Gates v. Fisk, 45 Mich. 522, 8 N. W. 558; Willoughby v. Irish, 35 Minn. 63, 27 N. W. 379, 59 Am. Rep. 297; Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867; Monidah Trust v. Kemper, 44 Mont. 1, 118 Pac. 811; Mayberry v. Willoughby, 5 Neb. 368, 25 Am. Rep. 491; Tappan v. Kimball, 30 N. H. 136, 141; Shoemaker v. Benedict, 11 N. Y. 176, 52 Am. Dec. 95; Hoover v. Hubbard, 202 N. Y. 289, 95 N. E. 702; Cohen v. Diamond, 132 N. Y. S. 355, 74 Misc. 444; Hance v. Hair, 25 Ohio St. 349; Kerper v. Wood, 48 Ohio St. 613, 29 N. E. 501, 15 L. R. A. 656; Wilson v. Waugh, 101 Pa. 233 (unless the promisor is a liquidating partner); Meggett v. Finney, 4 Strobh. L. 220; Fortune v. Hayes, 5 Rich. Eq. 112; Goudy v. Gillam, 6 Rich. Law, 28; Muse v. Donelson, 2 Humph. 166, 36 Am. Dec. 309; Haddock v. Crocheron, 32 Tex. 276, 5 Am. Rep. 244; Carlton v. Ludlow Woolen Mills, 27 Vt. 496 (statutory); Stubblefield v. McAuliff, 20 Wash. 442, 55 Pac. 637 (cf. Gehres v. Orlowski, 36 Wash. 156, 78 Pac. 792); Conrad v. Buck, 21 W. Va. 396, 407; Cowhick v. Shingle, 5 Wyo. 87, 37 Pac. 689, 25 L. R. A. 608, 63 Am. St. Rep. 17. See also State Loan Co. v. Cochran, 130 Cal. 245, 255, 62 Pac. 466, and as to the application of State law by the Federal Courts, Cronkhite v. Herrin, 15 Fed. 888; Bergman v. Bly, 66 Fed. 40, 27 U. S. App. 650, 13 C. C. A. 319. 37 Burr v. Williams, 20 Ark. 171; Bissell v. Adams, 35 Conn. 299; Beardsley v. Hall, 36 Conn. 270, 4 Am. Rep. 74; White v. Connecticut Insurance Co., 34 App. D. C. 460; Brewster v. Hardeman, Dudley (Ga.), 138; Cox v. Bailey, 9 Ga. 467, 54 Am. Dec. 358; but see First Nat. Bank v. Ells, 68 Ga. 192; Rogers v. Burr, 105 Ga. 432, 447; McLin v. Harvey, 8 Ga. App. 360, 69 S. E. 123; Van Staden v. Kline, 64 Iowa, 180, 20 N. W. 3; Wilmer v. Gaither, 68 Md. 342, 345, 12 Atl. 8, 253; Hayman v. Lambden, 97 Md. 33, 54 Atl. 962; Clinton County v. Smith, 238 Mo. 118, 141 S. W. 1091, 37 L. R. A. (N. S.) 272; Merritt v. Day, 38 N. J. L. 32, 20 Am. Rep. 362; Casebolt v. Ackerman, 46 N. J. L. 169; Wood v. Barber, 90 N. C. 76; Turner v. Ross, 1 R. I. 88; Fisher v. Tucker, 1 McCord Ch. 169; Veale v. Hassan, 3 McCord L. 278; Woonsocket Inst. v. Ballou, 16 R. I. 351, 16 Atl. 144, 1 L. R. A. 555: promise was made, one debtor would have no power to revive it. In every jurisdiction if one co-debtor has actual authority to pay or promise on behalf of all, all will be bound. Therefore payment by one joint debtor at the request or by direction of another revives the statute as to the latter; 38 and not only actual authority from his co-debtors at the time the new promise is made by one will bind all, but a semblance of authority for which the co-debtors are responsible is certainly sufficient if the new promise is made before the debt is barred. Therefore a partial payment made upon a partnership debt after the dissolution of the firm will suspend the operation of the statute as to other partners in favor of the creditor receiving such payment if he has had dealings with the partnership during its continuance and has had no notice of its dissolution.39 If, however, the new promise is not made until after the debt is barred, no forbearance injurious to the creditor can have been caused by relying on the supposed revival of the debt, and no element of estoppel can prevent those who made no promise from showing that no authority in fact existed, as by proving a dissolution of a partnership, even without proper notice to creditors. Ratification of a payment or new promise made by a co-debtor is as effectual as authority originally given to bind the party ratifying; 40 but mere contemporary knowledge of payments being made by a co-debtor is not of itself sufficient.41 Nor will a subsequent verbal Wheelock v. Doolittle, 18 Vt. 440, 46 38 Pitt v. Hunt, 6 Lans. 146; Coleman v. Ward, 85 Wis. 328, 55 N. W. 695. 39 Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42; Beardsley v. Hall, 36 Conn. 270, 4 Am. Rep. 74; Sage v. Ensign, 2 Allen, 245; Buxton v. Edwards, 134 Mass. 567; Robertson Lumber Co. v. Anderson, 96 Minn. 527, 105 N. W. 972; Tappan v. Kimball, 30 N. H. 136; Graves v. Merry, 6 Cow. 701, 16 Am. Dec. 471; Clement v. Clement, 69 Wis. 599, 35 N. W. 17, 2 Am. St. Rep. 760. But see Green v. Baird, 53 Ill. App. 211; Tate v. Clements, 16 Fla. 339, 26 Am. Rep. 709. 40 Granville v. Young, 85 Ill. App. 167; McDonald v. Weidmer, 103 Ill. App. 390; Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867; Whipple v. Stevens, 22 N. H. 219; First Nat. Bank of Utica v. Ballou, 49 N. Y. 155. 41 Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867; McMullen v. Rafferty, 89 N. Y. 456; Littlefield v. Littlefield, 91 N. Y. 203, 43 Am. Rep. promise to pay the balance amount to a ratification of a prior payment by a co-debtor, or bind the promisor in a jurisdiction where new promises must be in writing in order to be binding. 42 In a number of jurisdictions the whole matter is settled by statutes, which, in effect, generally provide that an admission or a new promise is ineffectual against any one but the party making it, in the absence of actual authority. Some States, however, follow the first English statute on the subject; 43 and do not limit the effect of a part payment but only deprive a co-debtor of the power without actual authority to make a promise which will bind others.44 663; Perkins v. Jennings, 27 Wash. 145, 67 Pac. 590. But see Granville v. Young, 85 Ill. App. 167; McDonald v. Weidmer, 103 Ill. App. 390. 42 Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867. 43 See supra, n. 29. 44 Vernon County v. Stewart, 64 Mo. 408, 410, 27 Am. Rep. 250; Clinton County v. Smith, 238 Mo. 118, 141 S. W. 1091, 37 L. R. A. (N. S.) 172. CHAPTER XIII CONTRACTS FOR THE BENEFIT OF THIRD PERSONS Nature of contracts for the benefit of a third person. 347 Property rights distinguished from contract rights. . Further illustrations.... Agency and contracts for the benefit of a third person. 348 349 350 351 352 353 Promises to one who did not furnish the consideration. 354 355 356 Contracts for the sole benefit of a third person should be enforceable. Receipt of property as consideration for a promise to make a payment... 370 No distinction if promise based on other valid consideration... 371 372 ..372a Contracts for the sole benefit of inhabitants of a community. Confusion in regard to contracts to discharge a debt.. 380 Most jurisdictions allow the creditor an action at law. 381 What amounts to an assumption of a mortgage.. 382 A mortgagee is generally allowed an action against a grantee who has assumed the mortgage. 383 Enforcement in equity of the mortgagee's right against the grantee. 384 Mortgagor should be party to the suit. 385 Successive purchases of mortgaged property. 386 |