Lyon v. Parker , 45 Me. 474 ( 1858 )

The opinion of the Court was drawn up by

Appleton, J.

It appears that the defendant, on April 4, 1849, by his bond of that date, “became bound and obliged jointly and severally,” to Abner Coburn and others, “ owners of mills, dams and water power on Skowhegan Falls,” and also “ unto the grantees of either or all of them,” (naming the obligees in the bond,) “ to complete, maintain and keep in good and perfect repair, at all times, for and during twenty years from the first of April, A. D. 1849, said dam,” &c., &c.

The plaintiff, as grantee of some of the obligees named in the bond, brings this action to recover damages for the injuries he has sustained by reason of the defendant’s failure to perform his covenants.

It is a familiar principle of law, that a bond or contract under seal, cannot be assigned so as to enable the assignee to maintain an action in his own name. If the bond had been made to Coburn and others, and their assigns, it would not be pretended that an assignee could maintain an action on it in his own name. It does not strengthen the plaintiff’s right of action because his only claim as assignee arises not from an assignment upon the bond, but by deed from some of the assignees.

The defendant is a stranger to the title. He contracts with certain individuals to do work upon a dam belonging to the obligees in the bond. The covenant is personal. There is no privity of contract between the plaintiff and the defendant, for the plaintiff was no party to the bond when it was executed.

Neither is there any privity of estate. “ It is not sufficient,” says Lord Kenyon, in Webb v. Russell, 3 T. R., 402, “that a covenant is concerning the land, but in order make it run with the land, there must be a privity of estate between the covenanting parties.” There being neither privity of contract nor of title, the action is not maintainable. Plymouth v. Carver, 16 Pick. 183; Hurd v. Curtis, 19 Pick. 458.

Plaintiff nonsuit.

Tenney, C. J., Rice, Cutting, May, and Goodenow, J. J., concurred.