I concur with the judgment here entered but not with the reasons given in support of it. It is not argued that an act of the General Assembly affecting the remedy by which a contract may be enforced, but which act is not made applicable to contracts existing at the time of its enactment, offends against the contract clause of the constitution of the United States.
It may be observed that the suit before us is not on the contract with the town but is an action in debt on the treasurer's bond by judgment creditors of the town, and, though in the name of the town, is so brought after the refusal of the town to sue. The act here under consideration went into effect some five months before the contractors acquired the right to sue on the bond, and the question therefore arises whether, under the facts of this case, the act suspending for a period of two years the right to sue on a treasurer's bond impairs the obligation of a contract existing when the act went into effect. Whether it does, depends on whether there was any contractual obligation *Page 67 existing between the treasurer and his sureties on the one hand and the contractors on the other, prior to the enactment of the statute. If such contractual obligation did not exist between them at that time, then, clearly, such obligation arose after the passing of the act. The right of the contractors, after having procured judgment against the town, to sue in the name of the town for their use is not disputed.
While the conditions of the treasurer's bond are that he shall pay lawful orders that come into his hands, the bond was not made primarily for the benefit of creditors of the town but for the town. To say that a claimant against the town may sue the treasurer without first reducing to judgment his claim against the town is to hold the treasurer liable to suit without regard to frailties in the contract with the town. The rights of these contractors, before their judgment against the town was obtained, were fixed by the contract and the contractual obligations arising thereon, and were the same without regard to the condition of the town treasury. Those obligations ran against the town. Nor are any obligations under that contract impaired by this act. The contractors had a right to proceed to judgment against the town, and they did so. They have full right to require, by appropriate action, the payment of this judgment against the town, and this without regard to whether there is any money in the town treasury.
The doctrine that a third party may maintain an action upon a contract made for his benefit is not applicable to every contract by the performance of which such third person may derive a benefit, but is limited to contracts which have for their primary object and purpose the benefit of such third person and which are made for his direct benefit. (Carson PirieScott Co. v. Parrett, 346 Ill. 252; Kinnan v. Hurst Co. 317 id. 251; Searles v. City of Flora, 225 id. 167.) In this case the bond sued upon was not issued primarily for the direct benefit of the contractors. *Page 68 They had no connection with it, and in the absence of a judgment against the town the contractors had no right to sue on this bond. This conclusion is in accord with the principles laid down in Kinnan v. Hurst Co. supra, Searles v. City ofFlora, supra, and Connolly v. Bolster, 187 Mass. 266,72 N.E. 981. The liability of appellants in this case is on the bond. They are required by the obligations thereof to respond primarily to the town. The obligations appearing therein cannot be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability. Carson Pirie Scott Co. v.Parrett, supra; Hageman v. Holmes, 179 Ill. 275.
What is sought here is to enforce an obligation of the treasurer to the contractors which did not come into existence until after the passing of the act here attacked. The suit is not one to enforce a contractual obligation existing between the contractors and appellants prior to the entry of the judgment of the former against the town but their right to bring this suit grows out of that judgment. Though it be conceded that the effect of the act of May 7, 1932, is to impair the obligation of contracts existing at the time it was enacted and as to such contracts is without force, it cannot be here held invalid, as applied to the facts of this case, for the reason that prior to its enactment no contractual obligation existed between appellants and these contractors. An act affecting remedies, which does not apply to pre-existing contracts, does not offend against the contract clause.Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143; Edwards v.Kearzey, 96 U.S. 595, 24 L. ed. 793; Barnitz v. Beverly, 163 id. 118, 41 L. ed. 93.
I am of the opinion that, as applied to the facts of this case, the act is not invalid, and for that reason the demurrer to the plea of the appellants should have been overruled. *Page 69