Drew v. Western Union Telegraph Co.

Savage, C. J.

This action was brought “in a plea of the case” namely, assumpsit, to recover damages, as set forth in the declaration, for breaches of certain “promises, covenants and agreements” to do certain acts, contained in a certain “lease and indenture.” The lease was offered in evidence by the plaintiff. It was under seal. On this ground, its admissibility to support an action on the case was challenged by the defendant. Thereupon, the question of admissibility was reported to this court.'

The precise question involved was determined by this court in Dann v. Auburn Electric Motor Company, 92 Maine, 165, and that case is decisive of this one. It was there held that “when one covenants or agrees under seal with another to pay a sum or to do an act, the other cannot maintain assumpsit upon the agreement. The action must be debt or covenant broken.” Therefore the lease under seal was not admissible to support an action in assumpsit.

In accordance with the stipulation, the certificate will be,

Judgment for the defendant, but without prejudice to the right of the plaintiff to bring and maintain an action for covenant broken upon the same instrument.