(After stating the foregoing facts.)
1. After a careful consideration of all the facts in the case as alleged in the petition, we are of the opinion that the Court of Appeals properly held that the contract in question did not effect *801a merger of the two corporations, the defendants in the case. That view is supported by the opinion of the United States Circuit Court of Appeals, 5th Circuit, in the case of American National Bank of Macon v. Commercial National Bank of Macon, 254 Fed. 249, in construing this identical contract. As we agree with the Court of Appeals upon the question as to whether, there was a consolidation and merger of the two corporations, further discussion is unnecessary.
2. But neither the trial judge nor the Court of Appeals seems to have considered the question as to whether or not, under the facts alleged in count 1 of the petition, the plaintiff was entitled to recover although there was no consolidation of the two banks. Under the allegations of the petition the plaintiff rendered valuable services ip the necessary work of liquidating the assets of the Commercial Bank. In the performance of the duties undertaken by him he rendered services to the American Bank, conferring with them as to notes, securities and other choses in action which had , been transferred by the Commercial Bank. These services were accepted by the American Bank. He had been named in a resolution appointing him as one of a committee .to assist the American Bank in reducing the assets to cash. Services like these can properly be regarded and treated as a part of the expense incurred in realizing on the assets, which they were authorized to deduct from the proceeds of the assets. The contract under which these assets were transferred by the Commercial Bank to the American Bank contains the express provision that the latter bank accepted the appointment as liquidating agent of the other bank, and should proceed with all due diligence in the course of liquidation to collect and reduce to cash all of the assets, and that the actual expenses incurred by the American Bank in realizing on said assets should be deducted from the proceeds produced by realizing on said assets. The allegation that these services were of value to the American Bank is to be taken as true in passing upon the demurrer. The question as to whether the plaintiff could have sued, on a quantum meruit against the American Bank alone for the value of his services is- not involved, as the plaintiff has seen fit to sue both of them and to rely upon the contract and upon the value of the services rendered. We are of the opinion that the suit as brought is maintainable. The obligation of the American Bank *802to the Commercial rests upon the express terms of this contract, and under the provisions of that contract the services of the plaintiff in the case were rendered and were accepted by the liquidating agent.
It is insisted by counsel 'for the American Bank that even if there was an undertaking entered into by that bank to pay for such services as those claimed to have been rendered, it was a promise and undertaking to the Commercial Bank, and that a party for whose benefit the promise was made could not maintain a suit at law, that he would be compelled to bring a suit in equity to obtain the benefit of the promise, and that the present action is one at law. Authorities are cited to support that contention. The proper reply to that contention seems to us to be that the present suit has all the necessary elements of an equitable petition to entitle the plaintiff to the only judgment which could be rendered, that is, a judgment for the value of his services. It is true that the prayers are merely for judgment and for process. What else would have been asked in the most formal equitable petition ? The petition shows clearly the relation of the defendants to one another in this transaction, and shows the facts that were the basis of the plaintiffs right under the contract, treating it as one between the two banks. We think, therefore, that the general demurrer to the petition was properly overruled by the trial judge. And while his reason for doing so was placed upon the ground about which we differ, nevertheless the entire petition should not have been dismissed.
The second count in the petition, wherein the plaintiff seeks to state a cause of action based upon the theory that there was a consolidation of the two banking corporations, can not avail the plaintiff; and the demurrer to that part of the petition should have been sustained. But the judgment of the trial court overruling the demurrer should not have been reversed generally. The judgment of the trial court should have been affirmed in part and reversed in part. It should have been reversed in so far as it overruled the demurrer to the second count of the petition, but affirmed in so far as it overruled the demurrer to' the first count.
Judgment of the Court of Appeals reversed.
All the Justices concur.