ities the plaintiff could not maintain an action upon this written instrument. Gurnéey v. Rogers, 47 N. Y. 233; Merrill v. Green, 55 N. Y. 270; Vrooman v. Turner, 69 N. Y. 280; Lorillard v. Clyde, 122 N. Y. 498; 25 N. E. Rep. 917; Wright v. Terry, 23 Fla. 160; 2 South. Rep. 6. Our statute is explicit on this subject. It provides that ‘a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” Comp. Laws, § 3499. The case does not fall within this statute. Referring to a statute couched in this same language, the court say in Chung Kee v. Davidson, 73 Cal. 522, 15 Pac. Rep. 100: “The general rule applicable to cases of this kind is that ‘when two persons, for a consideration sufficient as between themselves, covenant to do some act which, if done, would incidentally result in the benefit of a mere stranger, the stranger has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other.’ Railroad Co. v. Curtiss, 80 N. Y. 222.”
It is urged that Brandenburg, by his statements and conduct, has himself construed this paper as a letter of credit. It is not and cannot be contended that he has by his actions or by his words estopped himself from insisting that the instrament is not such a letter. The plaintiff, in selling the groceries to Mrs. Hall, did not rely upon the declarations or conduct of Brandenburg inducing belief that he had given a letter of credit, or anything equivalent to it. The plaintiff did not even rely upon the paper itself. He never saw it until all the goods had been sold. He sold on the statement of Mr. Hall as to what Brandenburg had agreed to do. We have examined the evidence, and are clear that Brandenburg has not by his conduct or words transmuted this mere agreement of Mrs. Hall to refund moneys advanced with 12 per cent. interest into a general letter of credit from Branbenburg, or an agreement on his part for the benefit of the plaintiff. We would hesitate long before holding, in the absence of facts constituting an estoppel, that the obvious meaning of a plain contract could in this manner be so radically changed. The judgment of the district court is reversed.
