56 Md. 169 | Md. | 1881
delivered the opinion of the Court.
The question for decision in this case arises on a demurrer to the %arr. of the plaintiff, who is the appellee in this Court. The Court below overruled the demurrer, and gave judgment for the appellee’s claim, against the appel
The declaration sets out that Gable & Beacham, on the 19th of May, 1877, entered into an agreement with Joseph M. Cone, of Baltimore City, in manner and form as is contained in the agreement, which is referred to as filed as part of the declaration. The agreement, in substance, provides for the purchase from Gable & Beacham by Joseph M. Cone, of five thousand five hundred dollars worth of building lumber and mill work, which is particularly described and set forth in the agreement. In part payment therefor, Gable & Beacham agreed to take “ the fourth house, on Harlem avenue, in said city, West of Mount street, to he built by Joseph M. Cone on a lot fifteen feet eight inches wide and ninety feet deep, (subject to a ground rent of one hundred dollars,) at twenty-six hundred and seventy-five dollars.” It also fully describes the character and quality of the house. The last clause of the agreement is in the following words: “Disagreed by said Cone that before said house shall have been conveyed to said Gable & Beacham, he, the said Cone, shall create thereon a mortgage of fifteen hundred dollars, at two years with interest, six per cent.; the use of which said mortgage and the money realized therefrom shall enure to the said Gable & Beacham ; the said Gable & Beacham are then to receive a conveyance of said house subject to said mortgage, which they are to covenant to pay at maturity.” This agreement was signed by Cone and by Gable & Beacham, hut was not under seal.
The narr. sets out that the mortgage mentioned was executed, acknowledged and recorded, and that the house was then assigned to James W. Beacham for Gable &
The Superior Court, in overruling the demurrer and giving judgment for the appellee, could only have proceeded upon one of two theories, viz., that the suit was on the covenant of James W. Beacham to pay the mortgage debt, which, is in the deed of the property to him for the firm, and that the firm was bound thereby, and the covenant enured to the benefit of the assignee of the mortgage ; or that the suit was upon the agreement between Cone and Gable & Beacham, which agreement passed to
In our opinion, the decision of the Superior Court cannot be sustained on either hypothesis.
If it is to be regarded as an action on James W. Beach-am’s covenant, it is very clear that the appellee cannot maintain a suit thereon, for he is not the covenantee,-and that covenant has not been assigned to him. Besides, it is only the covenant of one of the appellants, and there is no allegation of authority to make it for the other.
We do not suppose the Superior Court so understood the suit, and appellee’s contention. His counsel, in this Court, said he did not so maintain, and if it was to be understood as a suit on the'covenant of James W. Beacham, he had no case and would abandon it. Appellee’s counsel does contend, however, that it is an action of assumpsit, upon the agreement of Gable & Beacham, dated 19th of May, 1877, wherein they stipulate for the creation of the mortgage for their use, and “ agree to covenant to pay the mortgage when due and demandable.” As the appellee, in his narr. does not allege a specific assignment of this agreement, his supposed right to maintain this suit must be based on the theory that this agreement passed, by the assignment of the mortgage, as an incident to it, to the assignee. The provision of sec. 1, Art. 9, of the Code of Public General Laws, authorizing suits in the name of the assignee of the causes of action named in the law, is in derogation of the common law, and has never been held to give any rights not expressly conferred on the assignee of such dioses in action. The right which is given to the assignee of the several dioses
Ho special assignment of the agreement being alleged in the narr., it is defective for the want of such averment, if the claim was intended to be supported by evidence of such assignment. Inasmuch as the agreement of counsel provided for final judgment for the one side or the other, upon the decision of the Court as to the sufficiency of the narr., we suppose there was no other assignment than that which is alleged in the narr. It has not been claimed, by the appellee, that by a proper construction of the agree
Judgment reversed with costs, and judgment for appellants.