Cumberland National Bank v. St. Clair , 93 Me. 35 ( 1899 )

Haskell, J.

Assumpsit to recover from the purchaser of mortgaged property, who assumed the mortgage debt and agreed to pay the mortgage notes, the contents of a promissory note secured by the mortgage.

The promise to pay the note was made with two persons, who with another were makers of it and personally liable therefor. The promise was for the benefit of the holder as well. Had the promise to pay been a covenant under seal with the covenantee, to pay either to him or to the beneficiary, the covenantee alone could sue, for the covenant would have been with him, and damages for the breach thereof would arise to him only, although for the benefit of another, who might bring the suit in the name of the covenantee, but for his own benefit. Brann v. Maine Benefit Life Association, 92 Maine, 341, and cases cited. If the deed contain no covenant to pay, but merely recitals from which a promise to pay would arise, or be implied, then assumpsit would lie in favor of either the grantee or beneficiary. Baldwin v. Emery, 89 Maine, 498. So where the promise is by parol, as in the case at bar, to assume the debt and pay it, the promise is with the debtor, and for his benefit, because payment will relieve him from the debt. So, too, it is for the benefit of the creditor, as an additional security. No good reason can be given why the creditor may not recover his debt upon a promise to pay it, impliedly to him. The law implies assumpsit where money is due and ought to be paid, if there be no express promise, but an express promise excludes an implied one. Wirth v. Roche, 92 Maine, 383 ; Billings v. Mason, 80 Maine, 496; Wood v. Finson, 89 Maine, 459. In the case at bar there was an express promise with the debtor to pay the debt. The law implies a promise to the creditor also. He therefore may sue. It is true, that the beneficiary may not always sue where the fruits of a promise with another inure to his benefit, but only where the transaction fairly imports that right to have been the contemplation of the parties, for an implied promise results from equitable considerations, that many times gives a remedy to prevent circuity of action, unnecessary delay, and perhaps the failure of justice altogether. For illustration, reverse the situation. A man, without request of the debtor, voluntarily pays the debt. The law will not imply a promise of the debtor to repay him. Ames v. Coffin, 89 Maine, 300; Lafontain v. Hayhurst, 89 Maine, 388; Sanderson v. Brown, 57 Maine, 308; Hill v. Packard, 69 Maine, 158.

Exceptions overruled.