When a contract is only incidentally for the benefit of the plaintiff, that is, when he can neither be regarded as realizing on an asset of his debtor nor enforcing his right as sole beneficiary, he is denied relief. In Durnherr v. Rau, 135 N. Y. 219, 32 N. E. 49, A and his wife had mortgaged his farm to X, tho wife releasing her dower. Later A conveyed his equity to defendant, who agreed to pay the mortgage, the wife's dower being ex pressly reserved. Defendant failed to pay, and the farm was sold on foreclosure. It was held that the wife was not intended to be benefited, and could not sue. Hatters who agree to close their shops on Sundays, and in case of a breach to pay $100 to a charitable corporation, do not subject them selves to a suit by the charitable corporation in case of breach; New Orleans St. Joseph's Ass'n v. Magnier, 16 La. Ann. 338.
As to revocation between the promisor and promisee, it is generally held in the sole beneficiary contracts that the promisee may before collection; the question is whether the gift is executed or still in ac tion; see Biddel v. Brizzolara, 64 Cal. 354, 30 Pac. 609 ; Smith v. Flack, 95 Ind. 116 ; Emmitt v. Brophy, 42 Ohio St. 82 ; allowing revocation ; contra, Waterman v. Morgan, 114 Ind. 237, 16 N. E. 590; Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, 61 L. R. A. 509, 96 Am. St. Rep. 1003. As to cases of the debtor and creditor type, since even an insolvent debtor must be allowed to change the form of his property, releases are held valid if for good consideration. In general, the debtor may effect such releases unless it constitutes a fraud 'on his creditors ; Youngs v. Trustees, 31 N. J. Eq. 290; Wil
lard v. Worsham, 76 Va. 392.
The question whether the promisor in the second type of cases can set up questions as to the validity of the original debt de pends upon the nature of the promise. Usu ally the promisor is denied the right to set up defenses of which the debtor might have availed himself ; see Poll. Contr. 3d Am. ed. 275.
A creditor, who sues on a contract made by a third person with the debtor to assume and pay the debt, does so subject to all the equities existing between the original par ties to the contract; Fish v. Bank, 157 Fed. 87, 84 C. C. A. 502.
For a full and learned treatment of the subject, see Poll. Contr. 3d Am. ed. cb. 5, and note by Prof. Williston. The view there taken is that in all cases the third person should bring a bill in equity joining the promisor and promisee as defendants. Since the promisee has a vital interest in the per formance of the contract, he should have his day in court. Most states allow suits both by the promisee and the third party ; Poll. Contr. 3d Am. ed. 269, and this frequently results in injustice to the promisor.
When referring to different things before expressed, "this" refers to the thing last mentioned, and "that" to the thing first mentioned. Russell v. Kennedy, 66 Pa. 251. It is a simple word of relation and its or dinary grammatical meaning will not be extended so as to include something else than that to which it relates. 14 Q. B. D. 720.