dangers resulting from the accumulation of case law. The maxim which Sir Edward Coke and Professor Langdell united in indorsing has acquired new force and meaning: Melius est petere fontes quam sectari rivulos.

Before proceeding further to consider the efficacy of this method of dealing with the precedents, it will be useful to consider the results which have followed in a conspicuous case where the court failed to adhere to principle. In Lawrence v. Fox1 the plaintiff brought an action of contract supported by the following evidence: viz., "that one Holly, in November, 1857, at the request of the defendant, loaned and advanced to him $300, stating at the time that he owed that sum to the plaintiff for money borrowed of him, and had agreed to pay it to him the then next day; that the defendant in consideration thereof, at the time of receiving the money, promised to pay it to the plaintiff the then next day." The court overruled a motion by the defendant for a nonsuit and submitted the case to the jury, who returned a verdict for the plaintiff. The case was taken to the Court of Appeals, and there argued upon three points: first, that there was no competent evidence that Holly was indebted to the plaintiff; second, that the agreement by the defendant with Holly to pay the plaintiff was void for want of consideration; and third, that there was no privity between the plaintiff and the defendant. The court, by Hiram Gray, J., sustained the action, and concluded its discussion of the third point with these words: "if, therefore, it could be shown that a more strict and technically accurate application of the rules applied, would lead to a different result, (which I by no means concede) the effort should not be made in the face of manifest justice." 2 The majority of the court also relied on precedents. Gray, J., said: "As early as 1806 it was announced by the Supreme Court of this state, upon what was then regarded as the settled law of England,' that where one person makes a promise to another for the benefit of a third person, that third person may maintain an action upon it.' Schermerhorn v. Vanderheyden (1 Johns. 140) has often been reasserted by our courts and never departed from." Schermerhorn v. Vanderheyden is a per curiam opinion based on Dutton v. Poole and some other citations, wholly inconsistent with principles of contract and consideration thoroughly established in the common law when Lawrence v. Fox was decided. Johnson, Ch. J., and Denio, J., were of

1 20 N. Y. 268 (1859).

2 20 N. Y. 275.

3 1 Vent. 318.

opinion that the promise of Fox was to be regarded as made to the plaintiff through the medium of his agent, whose action he could ratify when it came to his knowledge though taken without his being privy thereto. Comstock, J., delivered a vigorous dissenting opinion, beginning with the statement: "The plaintiff had nothing to do with the promise on which he brought this action." 1 Turning to Langdell's Summary of Contracts, the rule is thus stated:

"It was decided in Dutton v. Poole2 (1677), that a daughter might maintain an action on a promise made to the father for her benefit, though it had previously been decided (Bourne v. Mason) as it has been since (and uniformly in England, Crow v. Rogers, Price v. Easton) that a person for whose benefit a promise was made, if not related to the promisee, could not sue upon the promise. This latter proposition is so plain upon its face, that it is difficult to make it plainer by argument. A binding promise vests in the promisee, and in him alone, a right to compel performance of the promise, and it is by virtue of this right that an action is maintained upon the promise. In the case of a promise made to one person for the benefit of another, there is no doubt that the promisee can maintain an action not only in his own name, but for his own benefit. If, therefore, the person for whose benefit the promise was made could also sue upon it, the consequence would be that the promisor would be liable to two actions. In truth, a binding promise to A to pay $100 to B confers no right upon B in law or equity. It confers an authority upon the promisor to pay the money to B, but that authority may be revoked by A at any moment. Of course it follows that the distinction upon which Dutton v. Poole was decided is untenable; and accordingly that case has been overruled. Tweddle v. Atkinson."

Has this statement of the case against allowing a stranger to a contract to bring an action upon it ever been met by any court which has allowed the action? Mr. Lawrence had no right, either legal or equitable, under the contract between Fox and Holly. If they had desired to confer a right upon him, the law provided a variety of methods by which it could be done. It was competent for Holly to act as agent for Lawrence in making the contract, if he had chosen to do so, and then upon familiar principles of agency Lawrence could ratify the act of one who had assumed to be his

1 20 N. Y. 275.

2 Langdell, Summary of Contracts, 2 ed., § 62.

agent. It was competent for Holly to make a declaration of trust in regard to the promise of Fox, in favor of Lawrence; or to require an undertaking from Fox that he would pay to Lawrence the specific fund of $300 delivered to him, thereby impressing upon it a trust; or for all three parties to effect a novation by making the promise necessary to extinguish the debt from Holly to Lawrence, and substitute for it a new debt or obligation from Fox to Lawrence. They did none of these things, and upon the facts proved it cannot be argued in support of the decision that they attempted to do any of these things. If the law provided no reasonable means by which Lawrence could acquire a right against Fox upon the transaction described, there might be ground for straining to extend him a remedy; but with ample means existing in the law to create a right in his favor, which was not used in his behalf, why should the court trouble itself to give Mr. Lawrence a remedy when he had no right?

The subsequent history of the case of Lawrence v. Fox is full of interest. Any student of the law will be well repaid for his labor, by reading all the subsequent decisions of the Court of Appeals in which the case has been cited and considered. Most students I believe will rise from that labor with the conviction that it would have been better for the law if Mr. Lawrence had been denied a remedy. It is plain that the Court of Appeals itself has not been satisfied with the decision. In Pardee v. Treat, Andrews, J., says: "The recent cases show that the court is disinclined to extend the rule in Lawrence v. Fox." In Wheat v. Rice, Finch, J., says: "We prefer to restrict the doctrine of Lawrence v. Fox within the precise limits of its original application."2 And again, in Gifford v. Corrigan: "Of course, it is difficult, if not impossible, to reason about it without recurring to Lawrence v. Fox (20 N. Y. 268) and ascertaining the principle upon which its doctrine is founded. That is a difficult task, especially for one whose doubts. are only dissipated by its authority, and becomes more difficult when the number and variety of its alleged foundations are considered. But whichever of them may ultimately prevail, I am convinced that they all involve, as a logical consequence, the irrevocable character of the contract after the creditor has accepted and adopted it, and in some manner acted upon it. The prevailing opinion in that case vested the creditor's right upon

1 82 N. Y. 385 (1880).

2 97 N. Y. 296, 302 (1884).

the broad proposition that the promise was made for his benefit, and, therefore, he might sue upon it, although privy neither to the contract or its consideration."1 Space will not here permit the pursuit of Lawrence v. Fox through all the refinements and distinctions which it has engendered, but there is good reason for the assertion that it has brought some confusion and uncertainty into the law. Harriman on Contracts says: "This rule has no foundation in principle, and is a pure case of judicial legislation; but the rule has been widely adopted throughout the United States, and has led to great confusion in the law."2 A graduate of the Harvard Law School, writing as a practicing lawyer in New York, says: "The New York courts, however, were soon put on the defensive, and, pitifully and apologetically squirming and shifting under the heavy burden, began to limit the new rule and hem it about. . . . We find a never-ceasing pricking of conscience." In Wald's Pollock on Contracts, Professor Williston says: "The law of New York is in rather dubious condition. It has been laid down in some cases that in order to entitle one who is not a party to a contract to sue upon it, the promisee must owe him some duty; but from recent cases it seems that a moral duty is enough, and this gives the court considerable latitude." 4

In the face of comments like these, and others which may be made, equally well founded, it is of little value to say that the doctrine of Lawrence v. Fox has spread far and wide in the United States, and that Massachusetts is now the only state which adheres to the general rule that a third person cannot sue upon a contract made for his benefit. If the lawyers and judges of Massachusetts have been remiss in the pursuit of "manifest justice," they have the satisfaction of seeing the Supreme Judicial Court sailing over untroubled seas in the law of contracts, under the friendly light of the common law, while the highest courts of sister states are struggling among the rocks and shoals to which they have been guided by the false light of Lawrence v. Fox. The more serious matter to be considered is that, in departing from the sound principles of the common law upon this important subject, many courts have become involved in diversity and uncertainty due to a failure to perceive or to state clearly any logical ground upon which the de

1 17 N. Y. 257, 263 (1889).

2 Harriman, Contracts, 2 ed., 213.

I HARV. L. REV. 226, Privity of Contract, by Jesse W. Lilienthal. 4 Wald's Pollock, Contracts, 250.

parture from sound principle was based. When the action of the courts leads to contradictory decisions or to uncertainty in the common law, relief must be had from some quarter, and the only available source of relief is the legislature. It cannot be said in all cases that it is undesirable that the legislature should be invoked to enact laws affecting the common law as declared by the courts. Such legislation at times is necessary and proper as a result of industrial or economic or social changes in society. Thus the rule established in the case of Farwell v. Boston & Worcester Railroad,1 by which a master was not answerable to his servant for injuries received in consequence of the negligence of a fellow servant, after a career of nearly half a century, has been profoundly modified by the Employers' Liability Act, and in England by the Workmen's Compensation Act — legislation which may well be justified on the ground that the rule of the common law established before 1850 was unsuitable to the great industries and changed conditions of the present day. The law of contracts, the law of torts, the law relating to personal property, and the entire system of equity may be said to be the work of the courts, and but slightly influenced by legislation. As a general rule it is better that the evolution of the law in those important subjects should continue through the agency of the courts rather than of the legislature; and it may further be said that it is highly undesirable that the need for legislation on those subjects should result from unsound or illogical action by the courts themselves. This is one of the evils resulting from Lawrence v. Fox. Thus Mr. Lilienthal suggested, in the article above cited, "Perhaps we shall get relief from the Field Code, which begins to loom up with terrible distinctness, and already poses as the layman's panacea and the lawyer's dragon." 2