Babcock v. Chase

—It is alleged in the complaint that the plaintiff was born on the 28th of October, 1875, and soon after her birth was by her parents named Catharine, and so christened; that she was called, and her name continued to be, Catharine Babcock, until February, 1876, when Christopher J. Babcock, the defendant’s testator, and the grandfather of the plaintiff, requested and ’urged her parents to change her name from Catharine to Harriet,

It is claimed by the appellant (1) that.there was no consideration for the promise with which it sought to charge the estate of _ the testator; and (2) that there was no privity of contract between the testator and plaintiff, and the plaintiff cannot, therefore, enforce the promise of the testator to plaintiff’s parents.

1. In Wolford v. Powers, 85 Ind. 294 , it was held that a promissory note, executed in consideration of a parent naming a child after the maker of the note, and in pursuance of a promise made him that, if the child were so named, he would provide generously for its education and support in life, is based on a sufficient consideration. In that case it is said:

“The surrender, at the intestate’s request, of the right or privilege of naming the appellant’s child, was the yielding of a consideration. The right to give his child a name was one which the father possessed, and one which he could not be deprived of against bis consent. If the intestate chose to bargain for the exercise of this right, he should be bound, for by his bargain he limited and restrained the father’s right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the request was of no value. It is difficult, if not impossible, to invent even a plausible reason for affirming that such a right or privilege is absolutely worthless. The father is the natural guardian of his child, and entitled to its services during infancy; and within this natural right must fall the privilege of bestowing a. name upon it. In yielding to the intestate’s request, and in consideration of the promise accompanying it, the appellant certainly suffered some right. * * * It will not do say that a bestowal of a name is a valueless act, and, if once it be granted to be of some value, then, in the absence of fraud and oppression, it must be held to possess the value placed upon it by the contracting parties.’1

In general, a waiver of any legal or equitable right at the reguest of another party is a sufficient consideration for a promise. 1 Pars. Cont. (8th Ed.) 444. “A valuable consideration, in the sense of the law, may consist either in some right or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Currie v. Misa, L. R. 10 Exch. 162, referred to in Hamer v. Sidway, 124 N. Y. 545 ; 36 St. Rep. 888 , where it is also said that courts “will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.” It is also said, quoting, from Pol. Cont. 166, that “consideration means not so much that one party is profiting as that the other abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the promise of the first.” In Hamer v. Sidway a promise to pay the promisee §5,000 if he would refrain from drinking liquor, using tobacco, swearing or playing cards or billiards for money until he should become twenty-one years of age, was held to be based on sufficient consideration. A similar view was taken in Lindell v. Rokes, 60 Mo. 249 . In Earle v. Angell, 157 Mass. 294 , it was held that a promise to pay the promisee $500 if he would attend the funeral of the promisor, was enforceable. In view of the doctrine of the Wolford Case, and the general principal enunciated or approved in the Hamer Case, we are of the opinion that a sufficient consideration is alleged for the promise of the decedent. There is no question "here about the adequacy. Earl v. Peck, 64 N. Y. 598 . That has been fixed by the parties,

2. Can the plaintiff enforce the promise ? It was made expressly for her benefit, and by reason of the relationship between íer and the promisee, and also by reason of her connection with 'the consideration there was such a privity between her and the promisee that she had a right to enforce the contract. This view is sustained by authority. In 1 Com. Dig. (5th Ed.) 304, and note p, the rule stated:

“ When one for whose benefit a contract has been expressly made is nearly related to the party from whom its consideration moves, either may sue for the breach of it, though the pendency of cither’s suit will preclude the other’s action.”

This is based mainly on the case of Dutton v. Poole, 2 Lev. 210, where the right of the child to sue was asserted. The authority of that case has been often recognized. Shephard v. Shepard, 7 Johns. Ch. 63 ; Todd v. Weber, 95 N. Y. 193 ; Knowles v. Erwin, 43 Hun, 152 ; 5 St. Rep. 421 ; affirmed, 124 N. Y. 633 ; Sackett v. Sackett, 14 St. Rep. 253 , The principle that relationship maybe the basis of a privity sufficient for the action is also recognized in Bogardus v. Young, 64 Hun, 404 ; 46 St. Rep. 780 ; Coleman

“ To give a third party who may derive a benefit from the performance of the promise an action, there must be : First, an intent bj 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.”

The plaintiff here has certainly an equitable claim to the benefit of the promise. The parents acted for her as well as for themselves in the transaction. They owed her a duty in that regard, from which it may well be said a privity arose sufficient for the maintenance of the action.

The case of Townsend v. Rackham, 143 N. Y. 516 ; 62 St. Rep. 851 , cited by the appellant, related to a matter widely different from the present, and the general rule there stated had no reference to the somewhat exceptional cases like the one now under review. We are of the opinion that upon the facts alleged the plaintiff had a right to sue.

It is suggested by the appellant that no damages are alleged. If there was a breach of the contract, there were, at least nominal damages. Besides, the allegation of the complaint is that the decedent would pay to the plaintiff the specified amount. We are of the opinion that a cause of action is alleged.

Interlocutory judgmént affirmed, with costs, with leave to defendant to answer in twenty days upon payment of the costs of the demurrer and of the appeal.

All concur. . .