City of Portland v. Atlantic & St. Lawrence Railroad , 1877 Me. LEXIS 167 ( 1877 )

Barrows, J.

On demurrer. The writ contains a count in debt, alleging an indebtment in a sum certain according to an account annexed which states the origin of the claim and specifies the amount as having been paid on a judgment recovered against the plaintiffs by one Josselyn for damages occasioned by a defective railroad crossing, owned and occupied by the defendants and constituting a part of Commercial street in said city.

A second count alleges an indebtment in another sum for the various matters and things commonly included in a general count in assumpsit, among which we find claims for money paid by plaintiffs for use of defendants at their request, and for interest on moneys due and owing.

It is suggested in support of the demurrer, that the declaration contains no allegations that the city was obliged to keep Commercial street in repair, or that the railroad company were notified of the pendency of the suit against the city, or that the jury found specially that the damage was occasioned by the fault of the railroad company, all which it is claimed should have been alleged and proved, to entitle the plaintiffs to recover under the statute of 1871, chapter 186.

But the demurrer was rightly overruled. No question arises as to what woidd be a good declaration under that statute.

The plaintiffs’ attorney did not apparently attempt to frame such a declaration. The only question is whether he has sufficiently set forth a good cause of action.

The statute does not expressly or by implication take away any remedy which might have been available to the plaintiffs at common law.

In such case the statute remedy is simply cumulative ; and the party may pursue either. Gooch v. Stephenson, 13 Maine, 371. Without the statute of 1871, the plaintiffs could have recovered in an action on the case against the defendants, such damages as they had been compelled to pay by reason of a defect in one of their streets caused by the negligence of the defendants in the construction or maintenance of their railroad crossing ; and if the railroad company had notice of the suit, and such suit was defended by the city at the request of the railroad company, the city could recover what they had been compelled to pay in costs also. Portland v. Richardson, 54 Maine, 46, and cases there cited. Lowell v. Boston & Lowell R. R. Co., 23 Pick. 24. It follows then that there would be a sufficient consideration for a contract on tlie part of the railroad company with the city to defend the suit in their behalf, and for a promise to repay to the city what the city should be obliged to pay in damages and costs in such a case. It is apparently upon such a contract that the declaration before us is framed. And we think it is sufficiently set forth therein. An action of debt may be maintained on a simple contract as well as on a specialty. Mc Vicker v. Beedy, 31 Maine, 314, 318. Norris v. School District in Windsor, 12 Maine, 293, 298. Exceptions overruled.

Appleton, C. J., «Diokerson, Danfobth, Yirgin and Libbey, JJ., concurred.