This section contains the nature of the case and procedural background.

James and D entered into the agreement whereby D agreed, for a monthly fee, to serve as custodian of certain of James's assets. D was to receive James' assets into custody and transfer them out upon receipt of authorized instructions. D was to act on James' investment instructions. D was to collect the proceeds of sales, maturities, and other dispositions, including collecting income, dividends, and other proceeds of investments; responding to shareholder actions. D was responsible for information requests from securities issuers, providing account statements and value appraisals, deducting the investment manager's fees, issuing 1099 Forms, making authorized wire transfers, and voting proxies. D's obligations were to continue until one party or the other gave notice of termination. The agreement provided that D would carry out instructions as they were received in the future from James or his authorized investment agent. James had more than 800,000 shares of Vanguard Emerging Markets Stock Index Fund (VEIEX) in D's custody, and he decided to make a charitable gift of these shares to P. On February 13, 2007, James instructed D to transfer all of the VEIEX shares in its custody 'FOR CREDIT TO THE JAMES FAMILY CHARITABLE FOUNDATION ACCOUNT #[xxxxx].' This instruction was made in writing on a State Street form intended to be used for this purpose. For an explanation for the transfer, the following appeared: 'GIFT TO JAMES FAMILY CHARITABLE FOUNDATION.' D acted on these instructions immediately by correctly completing a letter of instructions. Instead of sending the letter of instructions to Vanguard, as it should have done, D sent the letter to P's broker. Despite multiple inquiries from James's agent over the next several days as to the status of the transfer, D did not discover its error until February 22, 2007. On that day, it sent a second letter of instructions, this time properly directed to Vanguard. The shares did not reach P's account until March 1, 2007. P claims that had D not screwed up, P would have been able to sell the shares while the price was above twenty-five dollars. P had to sell at a lower price, losing $1.6 million. P sued D, and D moved for summary judgment claiming P was not an intended beneficiary and lacked standing to sue. The court agreed. P appealed.

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