Tweddle v. Atkinson

Two fathers agreed in writing to pay money to the groom, William Tweddle, and gave him power to sue. Tweddle sued Atkinson for the 200l. that Guy or his executor (the person appointed to carry out a will) had not paid. The Queen's Bench held that he, a stranger to the consideration (the price given for a promise), could not sue.

Quick Revision

Read the full judgment: BAILII

Parties

William Tweddle — plaintiff; the son of John Tweddle and the husband of Guy's daughter. He was named in the agreement and sued for 200l.

Atkinson — defendant. The judgment does not state his first name or his capacity. The claim is for the sum due from "the said William Guy or his executor".

William Guy — deceased; the father of Tweddle's wife. He promised to pay 200l.

John Tweddle — deceased; the plaintiff's father. He promised to pay 100l.

Procedural History

1. The plaintiff filed a declaration (the plaintiff's written statement of claim) setting out the agreement of 11 July 1855.
2. The defendant filed a demurrer (an objection that, even if the facts are true, the declaration shows no right to sue). The plaintiff joined in demurrer.
3. The case was heard before Wightman J, Crompton J and Blackburn J. Edward James appeared for the defendant and Mellish for the plaintiff.
4. The Court stopped the defendant's counsel in his opening and did not call on him to reply.
5. On 7 June 1861 the Court gave judgment for the defendant.

Facts

1. The plaintiff was the son of John Tweddle, deceased. He married the daughter of William Guy, deceased.
2. Before the marriage, William Guy promised the plaintiff a marriage portion for his daughter. The promise was given in consideration of the intended marriage and was verbal.
3. Before the marriage, John Tweddle also verbally promised the plaintiff a marriage portion, in consideration of the intended marriage.
4. When the agreement was made, neither verbal promise had been performed.
5. After the marriage, and in the lifetime of both men, William Guy and John Tweddle made a written agreement dated 11 July 1855 at High Coniscliffe. The declaration says it was a way to give effect to their verbal promises.
6. The declaration says each acted for the benefit of his own child. Guy wished to provide a portion for his daughter and to procure a further provision from John Tweddle. John Tweddle wished to provide a portion for the plaintiff and to procure a further provision from Guy.
7. The agreement said that William Guy would pay 200l. to William Tweddle, his son-in-law. John Tweddle, father of William Tweddle, would pay 100l. to William Tweddle. Each sum was payable on or before 21 August 1855.
8. The agreement also gave William Tweddle full power to sue both parties in any court of law or equity for those sums.
9. The plaintiff says that he and his wife, who was still living, afterwards ratified and assented to the agreement. He says he is the William Tweddle named in it.
10. The plaintiff says 21 August 1855 passed and everything needed to entitle him to the 200l. had been done. Neither William Guy nor his executor paid, and the sum remained unpaid.
11. The plaintiff sued Atkinson for the 200l.

Issues Raised

1. Can the plaintiff, a stranger to the agreement and to the consideration, sue on the contract made between Guy and John Tweddle?
2. Is there an exception to the rule that the consideration must move from the party suing, for contracts made by parents to provide for their children?
3. Is natural love and affection between father and son sufficient consideration to support an action by the son?

Arguments Contended

For the defendant (Edward James):

• The plaintiff is a stranger to the agreement and to the consideration as stated in the declaration. He therefore cannot sue on the contract.
• It is now settled that an action for breach of contract must be brought by the person from whom the consideration moved. He relied on Price v. Easton (4 B. & Ad. 433).
• Counsel was stopped at this point and made no further argument.

For the plaintiff (Mellish):

• He admitted the general rule stated by the other side. But he argued there is an exception for contracts made by parents to provide for their children.
• He relied on Dutton and Wife v. Poole, affirmed in the Exchequer Chamber. A tenant in fee simple was about to cut down timber to raise a portion for his daughter. The defendant, his heir-at-law, promised the father to pay money to the daughter if he refrained. The daughter and her husband's action of assumpsit (an old action on a promise) was held well brought.
• The natural relationship between father and son made the father an agent for the son. The contract was made on the son's behalf and for his benefit, so the son may sue.
• The object of the contract was that the children should be provided for. That object will be met if the action is maintainable. It will be defeated if the right of action stays with the father, because damages recovered by him would be his assets.
• In Bourne v. Mason (1 Ventr. 6), two cases are cited that support the action.
• In Sprat v. Agar (King's Bench, 1658), a man promised the father that, if he gave his daughter in marriage to the promisor's son, he would settle land. After the marriage the son sued, and the action was held maintainable.
• The other case was a promise to a physician. If he did a cure, the promisor would pay a sum to him and another to his daughter. It was resolved that the daughter might bring assumpsit. The report gives the reason that the nearness of the relation gives the daughter the benefit of the consideration her father performed.
• He said there is no modern case raising this question on a contract between two fathers for their children's benefit. According to the old cases the son could sue.
• When a father makes a contract for his child's benefit, the law vests the contract in the child.
• In Thomas v. - (Sty. 461), the defendant promised a father that, if he surrendered a copyhold, the defendant would give his two daughters 20l. each. After verdict, one daughter's action was challenged on the ground that the two should have joined. It was held that they had distinct interests, so each might sue.
• Edward James was not called upon to reply.

Court's Reasoning

Judgment of Wightman J

1. Noted: Some old decisions appear to support the view that a stranger to the consideration may sue. This is so if he stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration.
2. Noted: The strongest of those cases is the one cited in Bourne v. Mason (1 Ventr. 6). There the daughter of a physician was held able to maintain assumpsit on a promise to her father to give her a sum if he performed a certain cure.
3. Held: There is no modern case in which that view has been supported.
4. Held: "On the contrary, it is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit."

Judgment of Crompton J

1. Noted: It is admitted that the plaintiff cannot succeed unless this case is an exception to the modern and well established doctrine of the action of assumpsit.
2. Noted: When the cited cases were decided, assumpsit was treated as an action of trespass upon the case. It was therefore in the nature of a tort.
3. Noted: The law was not then settled that natural love and affection is not sufficient consideration for a promise. It was also not settled that the promisee cannot sue unless the consideration moved from him.
4. Held: The modern cases have, in effect, overruled the old decisions. They show that the consideration must move from the party entitled to sue on the contract.
5. Noted: It would be monstrous to say a person is a party to a contract to sue on it for his own advantage. He would not be a party to it to be sued.
6. Noted: It is said the father was agent for the son in making the contract. That argument ought also to make the son liable on it.
7. Held: He is prepared to overrule the old decisions. By reason of the principles now governing assumpsit, the present action is not maintainable.

Judgment of Blackburn J

1. Noted: The earlier part of the declaration shows a contract that might be sued on, except for the enactment in section 4 of the Statute of Frauds, 29 Car. 2, c. 3. This is the statute of frauds.
2. Noted: The declaration then sets out a new contract. The only point is whether the children can sue on it, because it is for their benefit.
3. Noted: Mellish admits that, in general, no action lies on a promise unless the consideration moves from the party to whom it is made.
4. Noted: Mellish says there is an exception. A father may give the consideration for a contract that benefits his son. Natural love and affection then lets the son sue as if he had given it himself.
5. Noted: Dutton and Wife v. Poole was cited for this exception.
6. Held: This Court cannot overrule a decision of the Exchequer Chamber. There is, however, a distinct ground on which Dutton v. Poole cannot be supported: natural love and affection is not sufficient consideration.
7. Held: The cases on stat. 27 El. c. 4 decided that, under section 2, voluntary gifts by settlement after marriage are void against later purchasers for value. Section 4 does not save them.
8. Held: Those cases show that natural love and affection is not a sufficient consideration on which an action of assumpsit may be founded.

Authorities

• Price v. Easton (4 B. & Ad. 433) — cited by the defendant for the settled rule that the person from whom the consideration moved must sue. The Court did not discuss it separately.
• Dutton and Wife v. Poole (2 Lev. 210; 1 Ventr. 318; affirmed in the Exchequer Chamber, T. Raym. 302) — relied on by the plaintiff. Blackburn J said it cannot be overruled by this Court but cannot be supported on the ground of natural love and affection.
• Bourne v. Mason (1 Ventr. 6) — cited by the plaintiff for two supporting cases. Wightman J called the physician's daughter case the strongest of the old decisions.
• Sprat v. Agar (King's Bench, 1658) — cited by the plaintiff within Bourne v. Mason. The father's promise to settle land on marriage was held to support the son's action.
• Thomas v. - (Sty. 461) — cited by the plaintiff. Each of two daughters had a distinct interest and could sue separately.
• Statute of Frauds, 29 Car. 2, c. 3, section 4 — noted by Blackburn J as the enactment that stopped the earlier contract being sued on.
• Statute 27 El. c. 4, sections 2 and 4 — relied on by Blackburn J through the decided cases. Section 2 makes voluntary gifts by post-marriage settlement void against later purchasers for value. Section 4 does not save them.

Judgement

1. Judgment for the defendant.
2. The judgment records no order for costs and no other direction.

Legal Principle / Ratio

A person who is a stranger to the consideration cannot sue on a contract, even if it was made for his benefit. Consideration must move from the party entitled to sue. Natural love and affection between father and son is not sufficient consideration for an action of assumpsit.

Key holding (Wightman J): "no stranger to the consideration can take advantage of a contract, although made for his benefit."

Critical Analysis

Analysis based on the judgment text.

• Crompton J overrules the old decisions. Blackburn J says the Court cannot overrule the Exchequer Chamber decision in Dutton v. Poole and distinguishes it on another ground.
• The judges give different reasons. Wightman J relies on the established modern rule. Crompton J relies on the nature of assumpsit and the party-and-liability argument. Blackburn J relies on natural love and affection.
• The agreement expressly gave William Tweddle "full power to sue". The judgment does not discuss that clause.
• The Court did not call on the defendant's counsel to reply.

Significance

• The case is an early authority that a person who is not a party to a contract cannot enforce it.
• It links the rule to consideration: the consideration must move from the party entitled to sue.
• It rejects family relationship and natural love and affection as a substitute for consideration.
• It shows that the parties' own declaration of a right to sue did not help the plaintiff.

Exam-Important Points

• Rule: no stranger to the consideration can take advantage of a contract made for his benefit. Trap: the contract expressly gave Tweddle power to sue, yet he failed.
• Rule: consideration must move from the party entitled to sue.
• Rule: natural love and affection is not sufficient consideration for assumpsit (Blackburn J).
• Trap: Crompton J would overrule the old decisions. Blackburn J says the Court cannot overrule Dutton v. Poole.
• Trap: the father-as-agent argument fails because it would also make the son liable (Crompton J).
• Result: judgment for the defendant.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited; the report is (1861) 121 ER 762.