By the Court,
The promise of Schwaebe to pay the two notes of $50 each, given by Miller and signed by the plaintiff Hoffman, as surety for him, was made to Miller *195and not to Hoffman, and the consideration of the promise proceeded from Miller alone. Therefore the judge at the circuit properly held that though, under the facts of the case, the agreement of the defendant to pay the notes was a valid one, there was no privity between him and the plaintiff. The cases cited by the plaintiff’s counsel may be divided into two classes: First. Those which show that a promise of the kind made by Schwaebe to Miller is not within the statute of frauds; and Second. Those which hold that when one person makes a promise to another, for the benefit of a third, such third person may maintain an action on it, though the.consideration do not move from him, and he be not privy to the agreement.
I need not refer to the first class of cases, because the court did not hold that the promise was void; and as to the second class, we need only refer to them for the purpose of seeing whether this promise of Schwaebe can be said to be a promise made for the benefit of Hoffman. I call attention to but one case, in this class—Lawrence v. Fox—because in that, nearly all the cases cited by the plaintiff are also cited; and because in this case the court of appeals have reached the “ultimo thule” of the principle above stated. In this case, one “ Holley, at the request of Fox, loaned him $300, stating that he owed that sum to Lawrence, and had agreed to pay it the next day ; and the defendant, in consideration thereof agreed to pay it to Holly next day.” Here it will be seen that although the plaintiff was not privy to the consideration, the promisee owed him the $300, which the promisor agreed to pay to him. But in the case before us, Miller, when the promise was made, did not owe Hoffman, and Hoffman had no right of action against any one, and could have none, till he had paid the notes upon which he was surety for Miller. It is true that it would have benefited Hoffman had Schwaebe fulfilled his agreement with Miller; but there is a plain distinction between a promise, the performance of which may benefit a third party, and a *196promise made expressly for the benefit of a third party. The promise of Schwaebe belongs to the former class. And the courts have not yet held that an action on such a promise can be maintained by the person who would be benefited by its fulfillment. In a word, the only rights of Hoffman, are the rights of a surety for Miller. As such his action must be against Miller.
[Monroe General Term,
September 3, 1860.
Smith, Johnson and Knox, Justices.]
As the agreement of the defendant created no privity between him and the plaintiff, and his promise was not made to Miller for the benefit of the plaintiff, the action failed, and a nonsuit was properly ordered.
Hew trial denied, with costs.