Hinkley v. Fowler , 15 Me. 285 ( 1839 )

After a continuance for advisement, the opinion of the Court was drawn up by

Shepley J.

Several objections were made at the trial to the right of the plaintiffs to maintain this action, and to the proceedings at the trial; three of which only are insisted upon in argument. The first denies their right to maintain an action for money had and received, because their rights, if any they have, are secured to them by deed.

It is never the duty, nor should it be the design of the Court to endeavor to support a particular form of action contrary to well established rules of law. It would introduce uncertainty and be productive of more mischief than will be in any case done, where a party has brought a wrong action, by turning him round to a right one. Yet in the great variety of contracts, and especially in times when the usual forms of instruments are greatly disregared, it may happen, that contracts are made in such a manner as to render it very difficult to determine, what is the proper remedy for an admitted right. And this case is not an inapt example of such a contract.

It is proper to state, for the purpose of coming to a correct conclusion, certain well established rules. Where one promises another, for the benefit of a third person, such third person may maintain the action of assumpsit in his own name. Dutton v. Pool, Sir T. Ray, 103 ; Felton v. Dickinson, 10 Mass. R. 289. Where oiie covenants, or agrees with another to pay a sum, or to do an act, the other cannot maintain assumpsit. His remedy is, as the law expresses it, of a higher nature. Bennus v. Guildly, Cro. Jac. 506 ; Bulstrode v. Gilburn, 2 Stra. 1027; Toussaint v. Martinnant, 2 T. R. 100; Richards v. Killam, 10 Mass. R. 239 ; Charles v. Dana, 14 Maine R. 383.

Whore one covenants with another to do ar>y act for the benefit of a third, the rule differs from that in assumpsit, and the action cannot be maintained upon such covenant in the name of the third person for whose benefit it was made. Offley v. Ward, 1 Lev. 235; Salter v. Kingley, Carth. 77 ; How v. How, 1 N. H. Rep. 49 ; Montague v. Smith, 13 Mass. R. 396. Without a violation of these rules, a statute, or record, or sealed instrument, may not only be used as evidence, but may form tile very foundation out of which arises an action of assumpsit. Rann v. Green, Cowp. 474.

Sucb also is the case of Sutherland v. Lishnan, 3 Esp. R. 42, where a seaman brought assumpsit for his wages, the ship’s articles being produced, were under his hand and seal, but not executed by the defendant, the master. In Fenner v. Mears, 2 Bl. R. 1269, defendant made a bond to one Cox, and indorsed upon it an agreement to pay to any assignee of Cox; the plaintiff being assignee, maintained assumpsit. Innes v. Wallace, 8 T. R. 595, was as-sumpsit by the assignee against the obligor of a stock bond, and the court say, this is not an action on the bond, that the assignment is a consideration for the assumpsit, and liken it to an assumpsit on a foreign judgment.

It will be found upon examination of the cases which decide, that assumpsit cannot be maintained, where the rights of the party are secured by deed, that there is in the deed some stipulation for payment or performance to himself, or to some one for his benefit.

In this case the defendant and L. Jewett held bonds separately, of tracts of land in the same township, and agreed by deed, if the lands were sold at a profit, what portions, and between whom, there being others interested, that profit should be divided. There is not in the deed any stipulation obliging the defendant to sell, or to account, or to pay to any one. There is nothing more obliging the defendant to pay to the others, than there is obliging _ L. Jewett to pay to them ; for he might sell, and It. Jewett receive payment. It is true the word agree, in the deed, is a covenant to do, what is agreed to be done ; but the agreement is a naked statement of the rights of the parties interested, without any contract to account or to pay to L. Jewett, or do any act whatever for the benefit of the other parties* It is a single statement of what these rights may be upon the happening of certain events. It is said, that L. Jewett should bring an action upon the deed, and recover the share, of the plaintifis. But what right has he to recover of the defendant the shares of the other persons ? Has the defendant agreed in the deed to pay them to him ? He has not; and would have as good right to insist, that he held the money as the agent of the plaintiffs and for their use, as L. Jeubett would to take it from him for such a purpose. There are even stronger indications in the deed, that the defendant was designed to be the trustee for the benefit of the plaintifis, than that L. Jewett was, because it was expected that he would do the business, and there is no agreement to pay their share to any other person. But suppose L. Jewett could, and that he should recover from the defendant the share of the plaintiffs; how are they to bring an action against him and avoid the very objection now made ? Their rights would still be secured only by deed, and that must be exhibited to prove them ; and L. Jewett might then make the objection now made. If the plaintiffs cannot maintain this action it is difficult to perceive in what manner, they can obtain rights, to which the defendant admits they are entitled by an instrument under bis hand and seal. The case of Allen v. Impett, 8 Taunt. 263, fully justifies the plaintiffs in bringing assumpsit. In that case the plaintiff was the assignee of one Prior, a bankrupt; and the defendants were the trustees in a marriage settlement by deed, holding stock and obliged by the deed to pay the interest to the bankrupt during his life ; after the bankruptcy the dividends were paid to his wife, and the plaintiff brought an action for money had and received, to recover it from the defendants. It was objected, that the action should have been upon the deed, and the plaintiff was nonsuited; but after argument the nonsuit was set aside and the action sustained.

The second objection is, that the defendant has not received money but notes of hand for a large part of the amount; and it is insisted, that the instructions upon this point were erroneous. They required that the jury should find “ that the defendant had realized the amount of said notes, and had had the benefit of them so as to apply the proceeds to his own use and under such circumstances the action for money had and received, may well be maintained. Tuttle v. Mayo, 7 Johns. R. 132.

The third objection is, that Luther Jewett was not a competent witness. It is said, that he is interested in the event of this suit, being the person with whom the defendant has covenanted, and the effect of his testimony being to relieve himself from accounting to the plaintiffs.

It has been already stated, that the deed does not constitute him more than the defendant, the agent or trustee of the plaintiffs. And the case finds from other testimony, that the agreement was made by the consent of the plaintiffs, so that whether they obtain any thing of the defendant or not, they have no right to complain of the witness. The same answer in substance may be given to the argument, that he made himself liable to the plaintiffs by asr signing the bond to the defendant. They had agreed, that he should enter into the contract by deed with the defendant, and it is therein recited, that he was to sell; and they could not complain of the witness, that he assigned the bond to enable him to do so. The witness does not appear to have received money, or to have done any act authorizing the plaintiffs to maintain a suit against him, and from which he would be relieved by the result of this suit. Judgment on the verdict.