POPE ·v. PORTER. 9
which the defendant bought subject to the mortgage, further agreeing to
pay the mortgage debt as part of the purchase price. By reason of this
agreement, he obtained possession of the corn, sold it, and now holds
the proceeds thereof. Under such circumstances he-is liable for money
had and received for the use and benefit of plaintiffs, as well as upon
the express promise to pay the debt as part of the purchase price.
It is also urged that an action at law cannot be maintained, for want
of privity between plaintiffs and defendant. It has long been the settled
law in Iowa that an action at law can be maintained upon a promise
made by A~. to B. to pay a debt due from B. to C., provided a sufficient
consideration is shown to exist. Johnson v. Collins, 14 Iowa, 64; Thomp-
son v. Bertram, Id. 477 ; Scott v. Gill, 19 Iowa, 187; Johnson v. Knapp,
36 Iowa, 616; Phillips v. Van Schaick, 37 Iowa, 229. U V
Counsel for defendant cites the cases of Bank v. Wand Lodge, 98 U. S.
123, and Oragin v. Lovell, 109 U. S. 194, 3 Sup. Ct. Rep. 132, ashold-
ing the doctrine that, under the facts of the present case, there is such
a want of privity between the parties that the action cannot be main-
tained. In the latter case it appeared that Eliza A. Quitman had sold
'a plantation to one Fisk, who executed nine notes and a mortgage on the
plantation to secure the purchase price. Subsequently George D. Ora- .
gin, by judicial proceedings, established the fact that, in making this ‘
purchase, Fisk was his agent, and wrongfully took the title in his own
name. The vendor brought suit for foreclosure of the mortgage, and,
under the decree therein, sold the plantation, but did not realize enough
to pay the amount of the notes given by Fisk. Thereupon she brought
an action at law against Cragin, setting up the giving of the notes, and
averring that, in the proceedings between Cragin and Fisk, the former
had averred that he was liable for and ready to pay for said property.
The supreme court held that, if the action was based upon the‘notes, it
could not be maintained, because Fisk alone was the maker thereof, and
that, if the action was founded on an agreement by Cragin to pay them,
it could not be maintained, because there was no privity between plain-
~ tiff and Cragin, for the reason that the averments by Cragin in the pro-
ceedings against Fisk, that he was liable for and ready to pay for the
lands, if "a promise to any one, it was not a promise to the plaintiff,
nor even a promise to Fisk, to pay to the plaintiff the amount of the
notes; but it was at the utmost a. promise to Fisk to pay that amount to
v him, or to indemnify him in case he should have to pay it." In other
words, the court holds that the facts of the case fail to show an agree-
ment between Cragin and Fisk that the former should pay to the mort-
gagee the debt due her. Herein lies the difference in the facts of that
case and the one at bar, which renders the ruling in that case inapplicable
to the one under consideration. '
In the other case cited it was held that the promise made by defend-
ant was concurrent with and dependent. upon the contract of the other
party, and, being an executory contract between the immediate parties
thereto, a third party could not sue thereon, without, in effect, chang-
ing the meaning of the contract. In the discussion of the case it is said