Secor v. Sturgis — 16 N.Y. 548

Majority

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Secor and others v. Sturgis and others.

Headnote

The distinction between demands or rights of action which are single and entire, and those which are several' and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts.

Where there are several items of account for goods sold or work performed at different times, there must be either an express contract, or the circumstances must be such as to raise an implied contract embracing all the items, to make them a single or entire demand.

The business of ship-carpenters was carried on in one part of a building, under the direction of two of the partners in a firm, and the business of ship-chandlers in another part of the same building, under the direction of the third partner. Separate books of account were kept by different clerks in the two branches of business, and the partners confined themselves respectively to the management of one of the branches, without personally taking part in the other. Work was done and materials furnished from the carpentry branch in the repairing and equipping a brig, upon the order of her captain, to the amount of $139, and immediately thereafter goods and articles of ship-chandlery were furnished to the same brig, and on the order of the same captain, at different times through a period of a month, amounting to $521; Held, that the two accounts did not constitute an entire claim, but, on the contrary, formed two several causes of action.

Assuming that the accounts would have formed a single demand, they were severed by the giving of a bond to secure the $521 due for chandlery, for the purpose of discharging an attachment against the brig, the account for carpenter’s work remaining a lien on the vessel; so that an action could be 1 maintained on such bond, notwithstanding judgment had been obtained and satisfied by proceedings in admiralty to enforce the lien for carpenter’s work.

The cases of Guernsey r. Carver ( 8 Wend., 492 ), and Stevens v. Lock-wood (13 id., 644), reviewed and questioned; that of Colvin r. Cw-win ( 15 Wend., 65 ), overruled.

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Appeal from the Supreme Court. Action upon a bond executed under section thirteen of title eight, chapter eight, part three of the Revised Statutes (2 R. S., 495), to procure the discharge of a vessel from an attachment issued upon application of the plaintiffs.

The complaint alleges that at the time of making application for the attachment, and at the time of the execution of the bond, there was due to the plaintiffs the sum of $521.15, for materials and articles furnished in the repairing, furnishing and equipping of said vessel at the city of New-York, at the request of the master; that said claim was a subsisting lien on said vessel at the time of the exhibition thereof to the officer who issued the attachment; and the plaintiffs assign as a breach of the condition of the bond the non-payment of said claim of $521.15, and demand judgment therefor, with interest.

The answer sets forth that at the time of the application for the attachment the plaintiffs had a further claim and demand due to them than that specified in their application, on account of work done and materials and articles contracted for by the captain of said vessel, then at the port of New-York, and furnished for the repairing, fitting, furnishing and equipping said vessel, which further claim or demand was a valid and subsisting lien upon the vessel; that the plaintiffs afterwards commenced their action or suit in rem in the District Court of the United States against the said vessel, by the filing of a libel to enforce the collection of said further claim, and recovered a judgment for the amount claimed; that the defendants have paid the judgment, and the same has been satisfied of record; and it is then averred that the proceedings and judgment in the district court and the payment and satisfaction of the judgment are a bar to a recovery in this action. The plaintiffs, in their reply, deny that they commenced their action in rem in the district court, and prosecuted the same to judgment, as alleged in the answer, otherwise than on a certain claim or demand for

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ship-carpenter’s work, and the labor, materials and articles supplied and used in said work, the nature of which claim or demand, and the foundation of it, are in the reply particularly stated. The plaintiffs, further replying, say, that the promises, undertakings and contracts alleged in the complaint in this action were not, nor were either or any of them, nor were either or any of the promises, undertakings or contracts on which the attachment was issued, the same identical promises, undertakings or contracts in respect to which the judgment mentioned in the answer in the district court was recovered. The cause was tried before a referee, who found as matter of fact that the plaintiffs, as co-partners under the name and firm of Charles A. Secor & Co., carried on the business of ship-carpenters and the business of ship-chandlers, and for their business occupied the store and premises known as No. 68 West-street, in New-York; that their office for transacting the business of ship-carpenters was on the second floor of said store, and that business was conducted and carried on under the particular direction and management of Zeno Secor and Henry E. Secor, two of the plaintiffs, who personally took no part in the business of ship-chandlers earned on by the firm; that their store and office for transacting the business of ship-chandlers was on the first floor of said store, No. 68 .West-street, and that business was conducted under the particular direction and management of Charles A. Secor, the other plaintiff, who personally took no part in the business of ship-carpenters carried on by the firm; that separate books of account, of and relating to their business of ship-carpenters, were kept in said office of the firm for the transaction of that business, which books were kept and the entries therein made by the plaintiffs Zeno Secor. and Henry E. Secor themselves; that separate books of account, of and relating to their business of ship-chandlers, were kept in said store and office of the firm for the transaction of that business, which books were kept and the entries therein made by John Gr. Merrill, the

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book-keeper, and Henry P. Gardner, a clerk of the firm in their business of ship-chandlers; that the bills for work done and materials furnished by the plaintiffs as ship-carpenters were made out by said plaintiffs Zeno Secor and Henry E. Secor, or one of them, but were sometimes copied and rendered by said Merrill or said Gardner, and the bills for goods sold by the plaintiffs as ship-chandlers were made out and rendered by said Merrill or said Gardner, and ordinarily the bills of said plaintiffs as ship-carpenters were rendered separately from their bills as ship-chandlers; that on or immediately before the 23d day of November, 1849, the plaintiffs, upon the application and order of Captain Locke, then master of the brig Leverett, lying in the port of New-York, did and performed carpenter’s work to, on and about said brig, and furnished materials therefor, to the amount of 6139.32; that from the 22d day of November to the 18th day of December, 1849, inclusive, the plaintiffs, upon the application and order of Captain Locke, sold, at their shipchandlery store, No. 68 West-street, and delivered on board of said brig, for her use, goods and articles of ship-chandlery to the amount of $521.15 ; that the order for said goods and articles was given, at the said store of the plaintiffs, to their clerk, Henry P. Gardner, and the goods and articles were so sold and delivered by their said clerk; that in the month of November, 1849, before giving the order for ship-chandlery, Captain Locke told the clerk, Gardner, that he had made an engagement with the plaintiffs for some ship-carpenter’s work to be done by them on said brig; that separate bills, one for said ship-carpenter’s work and materials, amounting to $139.32, and one for said goods and articles of ship-chandlery, amounting to $521.15, were, on or about the 19th day of December, 1849, made out and rendered by the plaintiffs, which bills were together delivered, by the clerk of the plaintiffs, Gardner, to Captain Locke, on board the brig; that on the 20th day of December, 1849, the plaintiffs applied to and obtained from a justice of the Supreme

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Court a warrant to enforce the lien of their debt for shipchandlery on and against said brig, and to collect the amount thereof, under and by virtue of which warrant the sheriff of New-York attached and took possession of the brig; that, to procure the discharge of the brig from the attachment, the defendants gave the bond w’hich is the subject of this action, and thereupon an order was granted discharging said warrant; that, after the issuing of said warrant and before said bond was executed, Locke, at the store of the plaintiffs, promised to pay the bill for ship-carpentering; that on the 29th day of December, 1849, the plaintiffs presented to and filed in the District Court of the United States for the southern district of New-York their libel against said brig for the collection of their said bill for work done and materials found by them as ship-carpenters, amounting to $139.32, upon which process was issued and the brig seized; that, upon the 15th day of February, 1850, on a consent given by Locke, the claimant of said brig, judgment was rendered, in the district court, in the cause commenced by said libel, in favor of the plaintiffs, for $140.69, with their costs, and that on the 26th day of March, 1850, upon a certificate of the clerk of said district court that the amount of the judgment had been paid, an order was duly made and entered, by which such judgment was satisfied and discharged. Upon the.facts found, the referee decided, as matter of law, that there was due to the plaintiffs in this action, on the said 20th day of December, 1849, the sum of $521.15 upon this claim and demand for goods and articles of ship-chandlery sold and delivered as aforesaid; which, by the provisions of title eight, chapter eight, part three of the Revised Statutes, was a subsisting lien upon said brig at the time of the exhibition of said claim or demand and of the application for the attach ment, and that the defendants are indebted and liable to pay to the plaintiffs the said sum of $521.15 with interest. In the progress of the trial exceptions were taken to several decisions on questions of evidence; and, after the evidence

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was closed, the defendant moved for a nonsuit, on the ground that the proofs showed the plaintiffs recovered a judgment in the district court,-upon a demand of which that in suit is a part, and that such judgment is a bar to this action, which motion was denied and the defendants excepted to the decision. The defendants also excepted to the conclusions of law in the report of the referee, as to their indebtedness and liability to the plaintiffs and the right of the plaintiffs to judgment against them. The judgment entered upon the report for the plaintiff was, on appeal, affirmed by the Supreme Court at general teim in the first district, and the defendants appealed to this court.

John II. Reynolds, for the appellant.

Nicholas Hill, for the respondent..

It is not controverted that the account, the amount of which is sought to be recovered in this action, was due to the plaintiffs, and a lien on the vessel, at the time of the application for the attachment, and also at the time of the execution of the bond on which this action is founded; but it is insisted that the said account, and the account for which judgment was recovered in the District Court of the United States, together, constituted a single cause of action, and that the judgment for part of it is a bai to a recovery in this action for the residue. The answer does not, in express terms, allege that the cause of action in the suit in the district court was the same as that in the present suit, but it was treated in the reply as containing substantially that allegation, and must therefore be so regarded by the court. It was essential, in order to present the question raised, that the identity of the cause of action in the different suits should, in some form, be averred in the answer. (3 Chit. Pl., 928, 9; Philips v. Berick, 16 John., 187 , 140.)

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The principle is settled beyond dispute that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings on- which it is rendered, whether the suit embraces the whole or only part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar in the other suits. (Farrington v. Payne, 15 John., 432 ; Smith v. Jones, id., 229 ; Philips v. Berick, 16 id., 137; Miller v. Covert, 1 Wend., 487 ; Guernsey v. Carver, 8 id., 492 ; Stevens v. Lockwood, 13 id., 644; Colvin v. Corwin, 15 id., 557; Bendernagle v. Cocks, 19 id., 207, and cases there cited.) But it is entire claims only which cannot be divided within this rule, those which are single and indivisible in their nature. The cause of action in the different suits must be the same. The rule does not prevent, nor is there any principle which precludes, the prosecution of several actions upon several causes of action. The holder of several promissory notes may maintain an action on each; a party upon whose person or property successive distinct trespasses have been committed may bring a separate suit for every trespass; and all demands, of whatever nature, arising out of separate and distinct transactions, may be sued upon separately. It makes no difference that the causes of action might be united in a single suit; the right of the party in whose favor they exist to separate suits is not affected by that circumstance,- except that in proper cases, for the prevention of vexation and oppression, the court will enforce a consolidation of the actions.

It is not, as will be seen by the cases, always easy^to determine whether separate items of claim constitute a single or separate cause of action; and this difficulty, connected

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with neglect, in some instances, of proper attention to the principle of the rule under consideration, has led to some loose expressions and confusion in the books on this subject. Farrington v. Payne was a plain case of an indivisible cause of action. A bed and bed quilts were takei at the same time and by the same act, and a recovery in trover for the quilts was held to be a bar to a recovery in trover for the bed. In Smith v. Jones, actions were brought for goods sold and delivered, the plaintiff, in one, claiming to recover for one barrel of potatoes, and in the other for two barrels of the same article, all sold at the same time. The court held that the demand could not be divided into separate suits. This was also a plain case of one cause of action. Miller v. Covert, in which the same rule was applied, was a case of a sale of hay, under a contract, delivered in parcels. The demand was held to be entire and indivisible.

In Guernsey v. Carver, the plaintiff declared on a book account consisting of items of merchandise delivered between the 20th of July and the 27th of August, 1828, amounting to $2.35. The defendant pleaded a former suit for the same identical cause and causes of action. It was proved in the Common Pleas that the plaintiff had an account against the defendant, consisting of twenty different articles of merchandise, delivered on fourteen different days between the 4th of June and the 27 th of August, 1828, amounting to between $5 and $6; that he commenced a suit against the defendant, and exhibited an account of items delivered between the 1st of June and the 19th of July, 1828, amounting to $2.74; that the defendant pleaded a tender in such suit, and obtained judgment for costs. The plaintiff then sued for the balance of such account, viz., for items delivered between the twentieth of July and the twenty-seventh of August. The Common Pleas decided that on a running account, where no special contract was made at the commencement of the account, and where items have been delivered on such account at different times, without any intermediate agreement, each separate

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delivery formed a separate and distinct cause of .action, and that separate suits might be maintained on each separate delivery ; and the plaintiff recovered judgment. On appeal to the Supreme Court the judgment was reversed. The court, by Nelsoít, J., after stating that it was settled in that court that if a plaintiff bring an action for part only of an entire and indivisible demand, the judgment in that action is' a conclusive bar to a subsequent suit for another part of the same demand, says: “ This case comes within the reason and spirit of that principle. The whole account being due when the first suit was brought, it should be viewed in the light of an entire demand, incapable of division, for the purpose of prosecution. The law abhors a multiplicity of suits. According to the doctrine of the court below, a suit might be sustained, after the whole became due, on each separate item delivered, and if any division of the account is allowable it must no doubt be carried to that extent. Such a doctrine would encourage intolerable oppression upon debtors, and be a just reproach upon the law. The only just and safe rule is to compel the plaintiff, on an account like the present, to include the whole of it due in a single suit.” The reasoning of the learned justice would make every account consisting of different items, the whole of which is due, an entire demand incapable of division for the purpose of prosecution irrespective of every other consideration. It excludes the idea that it is necessary the claims should have arisen out of a single transaction, or be connected together by contract. This, in my opinion, is carrying the doctrine in question far beyond its just limits. Stevens v. Lockwood was a case similar to the last, and decided upon similar views. These cases may have been rightly decided, but I cannot assent to all the reasons given for the decisions.

In Colvin v. Corwin, two suits were brought for lottery tickets sold the defendant. On the trial of the first the defendant admitted he had bought the tickets alleged to have been sold to him, and judgment was rendered for the

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plaintiff. The judgment was set up as a bar in the second suit, and on the trial it appeared that the tickets claimed in the suits were delivered to the defendant by two different agents of the plaintiff, at different offices occupied by them, at different times, and it was held by the Supreme Court that the previous judgment was a bar to a recovery. It is manifest that this decision rests on no sound principle, and is not law. A plainer case of distinct independent causes of action could hardly be presented.

Bendernagle v. Cocks was an action for breaches of certain covenants contained in an indenture of lease. A plea in abatement was interposed of an action pending upon the same lease for the alleged breach by the defendant of cove nants therein. It is stated in the reporter’s note that all the causes of action had accrued at the time of the bringing of the first action. The plaintiff replied that the covenants, for the breach of which the first suit was brought, were other, dis tinct and different from the covenants for the breach of which the second suit was brought. The defendant demurred, and the Common Pleas overruled the demurrer, but the Supreme Court reversed the judgment. Cowes, J., who delivered the opinion of the court, reviews and comments upon many of the cases, after which he makes the following observations : “ I admit that the rule does not extend to several and distinct trespasses or other wrongs, nor, as we have seen, to distinct contracts. It goes against several actions for the same wrong, and against several actions on the same contract. All damages accruing from a single wrong, though at different times, make but one cause of action, and all debts or demands already due by the same contract make one entire cause of action. Each comes under the familiar rule that if a party will sue and recover for a portion, he shall be barred of the residue. Proof of that fact would sustain the common issue presented in Bagot v. Williams, that the plaintiff had before impleaded the defendant, and recovered for the same identical cause of action,” &c.

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The true distinction between demands or rights of action which are single and entire, and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or' contracts. Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be; in respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a contract containing several stipulations to be performed at different times is no exception; although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others, the ground of action is the stipulation which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, where money has been lent to or paid for the use of a party at different times, or several items of claim spring in any way from contract, whether one only or separate rights of action exist, will, in each case, depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or perform work, or advance money; and usually, in the case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties. But there must be either an express contract, or the circumstances must be such as to raise ail implied contract, embracing all the items, to make them, where they arise at different times, a single or entire demand or cause of action.

Applying this test to the present case, it is very clear that the two accounts did not constitute an entire claim; but, on

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the contrary, that they were several and formed two several causes of action. The business of the plaintiffs consisted of two branches, which were designed to be and were kept entirely distinct, in each of which one of the accounts was made, and an arrangement was entered into under which one of the accounts arose anterior to the opening of the other account. Here was no express contract connecting the two accounts; and the facts, instead of warranting the presumption of such a contract, show that separate agreements only, one in regard to each account, were intended.

But assuming that the accounts form only a single demand, upon the other facts in the case the defence must fail. At the time of the issuing of the warrant of attachment, the accounts were a lien on the vessel, and the attachment was issued to enforce the lien as to one of the accounts. By the giving of the bond in suit, and thereby procuring the discharge of the attachment, the lien of that account on the vessel was discharged, and the demand became a mere personal obligation of Locke, the master and owner of the vessel, the plaintiffs holding the bond as security. The legal effect of the transaction was to separate the two accounts in respect to the lien, leaving the account not included in the attachment a lien on the vessel as before. (2 R. S., 493-496.) It did not satisfy or discharge or in any way affect the latter account, but the same remained valid, with the same legal force and operation in every respect which previously belonged to it. The plaintiffs were entitled to, as they did subsequently, institute a suit in rem in the district court and obtain a judgment against the vessel for the amount of said account. The account for which the attachment issued could not have been included in that suit, for tha reason that it was not then a lien on the vessel. It was not, therefore, any part of the cause.of action in the suit against the vessel; and hence the rule, the benefit of which is invoked by the defendants, that a judgment for part of an entire cause of action is a bar to the whole, is inapplicable to the

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case. That rule, although a salutary one, is of a technical character, and a case must be brought strictly within it to give it effect.

No error was committed in the rulings upon questions of evidence at the trial.

The judgment must be-affirmed.

All the judges concurring,

Judgment affirmed.