The opinion
Bunn, C. J., (dissenting.) This is not a case in which Prather is suing the Thomas Manufacturing Company on a mere verbal or constructive obligation to pay him what Brown, a third party, one of the company’s employees, owed him, for, if that were the case, and that merely, there would be no case in court, as it would come under the statute of frauds, which provides that, for one to be held for the debt of another, he must be held on some writing to that effect signed by himself or authorized by him to be signed for him.
This is a case under the equity doctrine that where two or more persons arrange and contract to create a fund for the benefit of a third person, in consideration of services to be performed by him in the future, or for the payment of a debt owing or to be owing to him, this third person may sue the person legally bound as the custodian of the fund, or who is responsible for the same, to recover so much thereof as will pay for his service or satisfy his debt. This person need not be named in the contract under which the fund is created, but it is sufficient if he is a member of a class of persons referred to in the contract.
I cannot concur in the opinion of the court that Brown is the beneficiary contemplated under the equity rule, for Brown is one of the original parties who have engaged to raise the fund, and in fact is the only contributor to that fund. He is therefore not a third party at all, but Prather, in my view of the case, is the beneficiary under the equity rule. In one sense, such a contract or arrangement is made for the benefit of all the parties interested, but, in the sense of the equity doctrine, the beneficiary cannot be a party to the contract; for, in that case, he need not resort to this rule to assert and secure his rights.
But, the court having concluded that Prather is not the beneficiary referred to expressly or by implication, it is needless to discuss his rights under the equity doctrine.
I think the judgment should have been affirmed.