The opinion
Concurring Opinion
Myers, J.
I concur in the majority opinion, and believe that it could have been based on additional reasons to those relied upon and set forth therein. The reasons upon which I would base a reversal are not presented or argued in appellants’ brief, nor do they appear as grounds for error in the motion for new trial. However, the facts supporting this reasoning stand out in the record with such stark clarity that, in my opinion, they cannot be ignored.
I realize that as a general rule the court will not search the record to reverse. But it has been held that this rule was not made to circumscribe the court.
“The court is not limited by the argument and reasons advanced in the briefs as to why the judgment should be affirmed or reversed. It may go entirely outside the briefs for correct reasons.” Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §2783, p. 364; Dudley v. Sears, Roebuck & Co. (1953), 123 Ind. App. 358 , 109 N. E. 2d 620 ; Van Winkle v. Van Winkle (1954), 124 Ind. App. 626 , 118 N. E. 2d 389 , 119 N. E. 2d 328 .
The record reveals that there was a conditional sale of the real estate involved herein by appellee King as vendor to the Williamses as vendees. The gross sale price was $13,500. The vendees made a $1,300 down payment. The balance of the purchase price was to be paid in monthly installments of $140, the first of which was due on January 1, 1957, and *181 every month thereafter until the entire indebtedness, including interest, was fully paid. This contract was executed on November 26,1956.
The specific clause in the contract concerning payment by the Williamses reads as follows:
“Buyers are hereby given the right to pay any additional amount to apply on the principal and the amount so paid shall thereupon reduce the principal accordingly. Said payments are to be made without relief from valuation and appraisement laws and with attorney’s fees to Marconi E. Ewell, at 2541 Maryland or to stick person or place as tke said Marconi E. Ewell, may designate.” (Our emphasis.)
There is also a clause stating that the vendees will not make any repairs “without the written consent of the Seller or Marconi E. Ewell herein.” (Our emphasis.)
Attached to this contract was a separate instrument, entitled “Assignment,” bearing the same date as that of the contract, wherein appellee King assigned and set over to Marconi the land contract, together with all sums due and to become due thereon. This assignment is set out in the majority opinion.
There was a mortgage on this property held by First Federal Savings & Loan Association of Gary, Indiana, in the sum of $3,868.37, with monthly payments being $102.25.
There is no mention made in the contract as to the mortgage or the manner of making payments thereon. The court, however, in its Special Findings of Fact numbered IX found that the contract and assignment were placed with the Gary National Bank for collection, and the proceeds from the collections were to be used by Marconi E. Ewell, first, in applying them on the mortgage payment due each month in the sum of $102.25. Then the court makes this statement: “The *182 balance of the collection was to be kept by Marconi E. Ewell.”
In Finding numbered VII, the court said: “In the contract the plaintiff designated the said Marconi E. Ewell as the one to whom the monthly payments were to be made.”
In, its conclusions of law, the court makes these statements:
“3. The real estate contract of November 26, 1956, in which the plaintiff, Amanda L. King, is described as seller, and Willie M. Williams and Dillie Clare Williams are described as buyers, is a valid contract for the sale of the above described premises with Marconi E. Ewell being described therein as the plaintiff’s agent for the collection of the monthly payments.
“4. The assignment dated November 26, 1956, in which the plaintiff, Amanda L. King, assigned the aforesaid real estate contract to Marconi E. Ewell was without any consideration and was for the accommodation of the said Marconi E. Ewell, and was in the nature of a power which was not coupled with an interest. It did not transfer any right in the land and only gave to the said Marconi E. Ewell the authority to receive the purchase money.”
Regardless of the apparent confusion as to Marconi E. Ewell’s legal status as set forth in the special findings of fact and conclusions of law, it is clear to me that the agreement of sale is a contract for the benefit of a third party. Appellee King as vendor and the Williamses as vendees agreed that the monthly payments, which would ordinarily go to appellee King, would be paid to Marconi E. Ewell. He therefore became a donee beneficiary of this contract, and no consideration needed to flow from him in order for him to be entitled to these payments. This type of contract is recognized in Indiana. Voelkel *183 et al. v. Tohulka et al. (1957), 236 Ind. 588 , 141 N. E. 2d 344 , 70 A. L. R. 2d 1349; VanOrman V. VanOrman (1942), 112 Ind. App. 394, 409 , 41 N. E. 2d 693 ; Reed v. Adams, etc., Wire Works (1914), 57 Ind. App. 259, 266 , 106 N. E. 882 ; Rawlings v. Vreeland (1921), 76 Ind. App. 209 , 127 N. E. 786 ; Stevens v. Flannagan et al. (1892), 131 Ind. 122, 129 , 30 N. E. 89 8; Bryson v. Collmer (1904), 33 Ind. App. 494, 497 , 71 N. E. 229 ; Carnahan et al. v. Tousey et al. (1884), 93 Ind. 561 ; Blackard v. Monarch’s etc., Inc. (1961), 131 Ind. App. 514 , 169 N. E. 2d 735 . All these cases hold that a promise by one person to another for the benefit of a third may be enforced in an action brought by the third person in his own name even though he is a stranger to both the contract and the consideration therefor.
“Frequently the contract of sale requires the purchase money or a part thereof to be paid to a third person, and under the general principles applicable to contracts entered into for the benefit of a third person, the person to whom- payment is to be made may sue thereon, and such third person has been held to be entitled to enforce a vendor’s lien, for the satisfaction of his claim.” 55 Am. Jur., Vendor and Purchaser, §345, pp. 772, 773. See, also, 55 Am. Jur., Vendor and Purchaser, §481, p. 881.
It is not necessary that the agreement should have been delivered to a third person, delivery to the contracting party being sufficient delivery to the beneficiary. Stevens v. Flannagan et al., supra. The rule is that the beneficiary must be the real party in interest and not merely derive an incidental benefit from the performance of promisor. Harvey v. Lowry (1932), 204 Ind. 93 , 183 N. E. 309 ; Reynolds et al. v. Louisville, New Albany and Chicago Ry. Co. et al. (1896), 143 Ind. 579, 629 , 40 N. E. 410 .
*184 In its conclusions of law, the court states that Marconi is described in the contract of sale as a collection agent for appellee King. Not only is this contrary to the court’s findings of fact, but it is also contrary to the provisions of the contract, the pertinent section of which has been set forth above. There is no evidence whatsoever in the record that appellee King intended for him to act as such. Appellee King testified several times that she made the arrangements to sell the house because Marconi was sick and was “all down and out,” “had nothing to go on,” “had worked so hard,” and she had promised to see after him if he needed help. This testimony, together with the contract itself, with particular reference to the clause wherein he was to be the recipient of the monthly payments, and to the clause wherein he was to approve in writing any repairs made by the purchasers, all point to her intention to benefit Marconi directly.
It seems to me that the trial court overlooked the fact that a third-party beneficiary contract had been executed, and that the assignment, having been signed on the same day and attached to the land contract, became a part of that contract as a contemporaneous instrument. The legal effect of such an assignment could well be profound. It is known that a vendor may make an assignment of an executory contract for the sale of real estate as distinguished from a conveyance of the land. 55 Am. Jur., Vendor and Purchaser, §407, p. 828. Although the Williamses as purchasers held equitable title to the property as long as they performed the conditions of their contract, Marconi was also granted a contractual interest in the property by virtue of the assignment. This was more than just the right to collect the monthly payments, as there were many other provisions in this *185 contract, particularly those in reference to the vendor’s rights upon default. It is further proof of appellee King’s intention to benefit Marconi.
As the assignment and contract were tied together as one, with the obvious intention on the part of appellee King to make Marconi a donee beneficiary, the question of consideration is unimportant. The rights given him by the terms of the contract and the assignment thereof were valuable, and at his death they vested in his widow, appellant herein, pursuant to our laws of descent, §§6-103, 6-201, 7-123, Burns’ 1953 Replacement, and his personal representative had the right to take possession of them, §7-701, Burns’ 1953 Replacement.
Note. — Reported in 180 N. E. 2d 774 .