Drew v. W. Union Tel. Co.

• Citation: 89 A. 144,111 Me. 346
• Parties: DREW v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 30 December 1913
• Court: Supreme Judicial Court of Maine (US)

89 A. 144

111 Me. 346

DREW

v. WESTERN UNION TELEGRAPH CO.

Supreme Judicial Court of Maine.

Dec. 30, 1913.

Report from Supreme Judicial Court, Androscoggin County, at Law.

Action by Louise S. Drew against the Western Union Telegraph Company. Heard on report from Supreme Judicial Court. Judgment for defendant, but without prejudice to the right of plaintiff to bring and maintain an action for covenant broken upon the same instrument.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HANSON, and PHILBROOK, JJ.

A L. Kavanagh, of Lewiston, for plaintiff.

Ralph W. Crockett, of Lewiston, for defendant.

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 Dunn v. Auburn Electric Motor Company, 92 Me. 165, 42 Atl. 389, 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.