Carr v. National Security Bank

Gbay, J.

It is a general rule of law, that upon a promise made by one person to another, for the benefit of a third from whom no consideration moves, the latter cannot sue ; and the exception to this rule, which holds a person, in whose hands funds have been placed to pay creditors of the depositor, liable to *48 actions by them, has not been extended, in this Commonwealth or in England, to a case in which neither such creditors nor the amounts of their debts are named or ascertained at the date of the promise. Mellen v. Whipple, 1 Gray, 317. Dow v. Clark, 7 Gray, 198. Frost v. Cage, 1 Allen, 262. Fairlie v. Denton, 8 B. & C. 395; S. C. 2 Man. & Ryl. 353. Gerhard v. Bates, 2 El. & Bl. 476. And by our law a promise to the drawer by the drawee of a negotiable draft or bill of exchange to accept and pay the same does not make the drawee liable to an action by a holder, unless he has taken the draft on the faith of such promise; but is a mere chose in action, upon which he only to whom it Avas made can sue. Exchange Bank v. Rice, 98 Mass. 288, and ante, 37. In the cases, mentioned at the argument, of general letters of credit and public offers of reward, the person who, by making an advance in the one case, or doing the acts specified in the offer in the other, accepts the proposition of the defendant, becomes himself the other party tó the contract, and the one from whom the consideration moves.

The plaintiff in the present case ° does not allege that the defendants made any promise to him, or that he did anything upon the faith of their promise to the drawer, or even knew of that promise when he took the check sued on. The relation between (he defendants and the drawer, as disclosed in the declaration, was simply the ordinary one of bankers and customer, which is a relation of debtor and creditor, not of agent and principal, or trustee and cestui que trust. The bankers agree with their customer to receive his deposits, to account with him for them, to repay them to him on demand, and to honor his checks to the amount for which they are accountable to him when the checks are presentedand for any breach of that agreement they are liable to an action by him. But the money deposited becomes the absolute property of the bankers, impressed with no trust, and which they may dispose of at their pleasure, subject only to their personal obligation to the depositor to pay an equivalent sum upon his demand or order. The right of the bankers to use the money for their oavu benefit is the very consideration for their promise to the depositor. They make no agreement Avith the *49 holders of his checks. A check drawn by him in common form, not designating any special fund out of which it is to be paid, nor corresponding to the whole amount due to him from the bankers at the time, is a mere contract between the drawer and the payee, on which, if payable to bearer, and not paid by the drawees, any holder might doubtless sue the drawer, (as suggested in Ancona v. Marks, 7 H. & N. 686, 696, cited for the plaintiff,) but which passes no title, legal or equitable, to the payee or holder, in the moneys previously paid to the bankers by the drawer; and the bankers’ promise to the drawer to honor his checks does not render them, while still liable to account with him for the amount of any check as part of his general balance, liable to an action of contract by the holder also, unless they have made a direct promise to the latter, by accepting the check when presented, or otherwise. The view, thus briefly stated, is in accordance with the law as established in England, in New York and in Pennsylvania, with the opinions heretofore expressed by this court, and with the recent unanimous decision of the supreme court of the United States. Foley v. Sill, 1 Phil. Ch. 399, and 2 H. L. Cas. 28. Parke, B., in Bellamy v. Marjoribanks, 7 Exch. 389, 404. Addison on Con. (6th ed.) 810. Chapman v. White, 2 Selden, 412, 417. Boyd v. McCaffrey, 46 Penn. State, 410, 4l4. Bullard v. Randall, 1 Gray, 605. Dana v. Third National Bank, 13 Allen, 445. Bank of the Republic v. Millard, 10 Wallace, 152.

Judgment for the defendants affirmed.