Vermeule v. York Cliffs Improvement Co.

• Decision Date: 16 April 1909
• Citation: 105 Me. 350,74 A. 800
• Parties: VERMEULE v. YORK CLIFFS IMPROVEMENT CO.
• Court: Maine Supreme Court

74 A. 800

105 Me. 350

VERMEULE

v. YORK CLIFFS IMPROVEMENT CO.

Supreme Judicial Court of Maine.

April 16, 1909.

(Official.)

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

Action by Cornelius C. Vermeule against the York Cliffs Improvement Company in assumpsit on an account to recover $5,694.01 paid by plaintiff for defendant's use as surety on a note given by defendant. The writ also contained the common counts for money expended, to which defendant pleaded the general issue with a statement of facts as follows:

"That no money or other value has ever been received by defendant, or paid by the plaiutiff for the use of the defendant; but that a judgment was obtained in favor of one John D. Vermeule against the plaintiff in the Supreme Court of the state of New Jersey for the sum of $5,601.82 with costs. June 12, 1900, and execution Issued thereon; that thereafter the plaintiff filed in the Court of Chancery of New Jersey a bill in equity containing a prayer for injunction to restrain the collection of said judgment and the levying of said execution, whereupon said plaintiff was required by said court to deposit with it said sum of money to be held to await the determination of said bill and further order of said court; that plaintiff did so deposit said sum, and that said bill has not been determined, and no further order made by said court, nor has this defendant ever received, nor does it now have, any possession, use, or control of said sum or any part thereof, but said sum still remains on deposit in said court as aforesaid."

When the action came on for trial, an agreed statement of facts was filed, and the case was reported to the law court for decision.

The case is stated in the opinion. Judgment for plaintiff.

Argued before EMERY. C. J, and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Geo. F. & Leroy Haley, for plaintiff. George C. Yeaton, for defendant.

SPEAR, J. This is an action brought by Cornelius C. Vermeule against the York Cliffs Improvement Company to recover the sum of $5,004.01 for so much money paid by the plaintiff for the use and benefit of the defendant corporation. The plaintiff is a resident of the state of New Jersey and John D. Vermeule is a resident of New York City. The defendant is a domestic corporation of the state of Maine. The writ contains the common counts for money paid and expended with an account annexed of the following tenor:

"York Cliffs Improvement Company, to Cornelius C. Vermeule, Dr.

"To money paid August 1, 1906, as surety on your note dated the 24th day of November, 1897. $5,694.01."

The facts upon which this plaintiff seeks to recover are these: The York Cliffs Improvement Company required for its use the sum of $10,000, for which sum, on November 24, 1897. it executed and delivered a demand note payable to the order of John D. Vermeule. Upon the note was this indorsement: "This note is given to be held by John D. Vermeule as collateral security for moneys to be advanced by him to York Cliffs Improvement Company to pay its outstanding bills payable, accounts payable, and current expenses." Then appears the further indorsement: "I hereby assume liability for all money to become due or to be secured by this note to the extent of 11/27 of the entire amount. C. C. Vermeule." There is another indorsement upon the note of similar import, but immate-vial in the discussion of this case.

Now, it appears that John D. Vermeule. having advanced payments upon the note whereby C. C. Vermeule became liable upon his contract, on the 24th day of September. 1001, brought suit in the Supreme Court of New Jersey against him for his proportion of the amount due. On the 12th day of June, 1909. John D. Vermeule recovered judgment against C. C. Vermeule, upon which execution was issued and delivered to the sheriff for levy.

Prior to the date of this Judgment, C. C. Vermeule had filed a bill in equity in the Court of Chancery for the state of New Jersey wherein he claimed, among other things, that John D. Vermeule had been, and was, a copartner with himself; that their final accounts had never been settled; and praying for an accounting and settlement of the alleged copartnership affairs. This bill was pending when the above judgment and execution were issued.

Upon the rendition of the judgment at law C. C. Vermeule, the defendant in that suit, filed in the equity suit, in which he was plaintiff, a prayer for an injunction to restrain the collection of the judgment and the levying of the execution, whereupon he was required by decree of the court to deposit with it the sum of money due upon the execution, to be held to await the determination of the bill and further order of the court. The deposit was made by C. C. Vermeule as required, and, at the date of his writ in the present suit against the defendant corporation, the bill had not been determined and no further order had been made, the money deposited still remaining in the custody of the court. Upon making the deposit C. C. Vermeule took the following receipt:

"Whereupon the said C. C. Vermeule did pay and deposit in c...