Harvey v. Maine Condensed-Milk Co.

• Decision Date: 04 November 1898
• Citation: 92 Me. 115,42 A. 342
• Parties: HARVEY v. MAINE CONDENSED-MILK CO. LEACH v. SAME. FRENCH v. SAME. FOLSOM v. SAME.
• Court: Maine Supreme Court

42 A. 342

92 Me. 115

HARVEY

v. MAINE CONDENSED-MILK CO.

LEACH

v. SAME.

FRENCH

v. SAME.

FOLSOM

v. SAME.

Supreme Judicial Court of Maine.

Nov. 4, 1898.

(Official.)

Agreed statement from supreme judicial court, Penobscot county.

Actions by Austin I. Harvey, Edward R. Leach, James H. French, and Carroll H. Folsom against the Maine Condensed-Milk Company. Submitted on agreed statement. Plaintiffs nonsuited.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, STROUT, and SAVAGE, JJ.

Charles J. Hutchings, for plaintiffs.

James M. Sanborn, for defendant.

SAVAGE, J. These four actions come up together, upon a statement of facts agreed upon, from which it appears that on the 20th day of April, 1894, each of the plaintiffs was a creditor of the Aroostook Condensed-Milk Company; that prior to that time the Aroostook Condensed-Milk Company had become deeply involved; that, after the plaintiffs had become creditors as above stated, a new corporation, composed in part of the stockholders of the old company and in part of other individuals, was incorporated under the name of the "Maine Condensed-Milk Company," and is the defendant in these cases; that the plan of the new company was to purchase the entire property of the old company, to pay the entire indebtedness of the old company, and have the affairs of the old company wound up; that on the 20th day of April, 1894, the Aroostook Condensed-Milk Company and this defendant entered into an agreement, under seal, for the sale by the former, and the purchase by the latter, of the entire property of the former, in which sealed agreement the defendant company covenanted in the following words: "Said Maine Condensed-Milk Company hereby agrees to pay said Aroostook Condensed-Milk Company for said property in the following manner: (1) That said company will pay all outstanding debts and liabilities of the Aroostook Condensed-Milk Company that are not secured by mortgage on its property." Other covenants follow which need not be stated. It further appears that on the same day, and as a part of the same transaction, the Aroostook Condensed-Milk Company gave to the defendant a warranty deed of all its property, and in the preamble to this deed is the following recital of a vote passed by the stockholders of the grantor company: "Voted, that the Aroostook Condensed-Milk Company do sell its entire property, including its factory or plant at Newport Maine, and its factory or plant at Winthrop, Maine; and all fixtures, furnishings, stock on hand, rights, and credits; and all accounts for goods sold and delivered; and any other accounts that may be legally due said company; notes, bonds, and other choses in action; trade-marks, copyrights, labels, and good will in business,—to the Maine Condensed-Milk Company of Waterville, Maine, to be paid for in the following manner: (1) That said company shall pay all outstanding debts and liabilities of said Aroostook Condensed-Milk Company that are not secured by mortgage on its property."

These plaintiffs have sued the defendant in assumpsit upon their several claims against the old company. They are not parties to the contract and deed between the old company and the defendant but they claim that, as creditors of the old company, they are beneficiaries of the contract, and as such are entitled to recover as upon a promise of the defendant, which may be implied from the recitals in the contract under seal executed by the defendant, and from like recitals in the deed poll accepted by the defendant. Can these actions be maintained?

The law in this state is well settled. It has been recently examined in Baldwin v. Emery, 89 Me. 496, 36 Atl. 994, and so fully as to require no more than a brief recapitulation here. Said Mr. Justice Haskell in Baldwin v. Emery: "Where one covenants with another by deed under his own hand and seal, to pay him money for his own use or for the use of another, the obligee alone can sue upon the covenant, and the action must be covenant or debt, and not assumpsit; and the beneficiary can have no action at law, but may have remedy in equity. But, where the sealed instrument contains no covenant to pay or perform to the obligee or to the beneficiary, assumpsit will...