Stevens v. Lockwood — 13 Wend. 644

Majority

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Stevens vs. Lockwood.

NEW YORK,

May, 1835.

Headnote

Where a party has demands against another, resting in account for property sold, for work done, and for rents due to him, and brings a suit, and on the trial of the cause withdraws from the consideration of the jury some of the items of his account, whilst he submits others of the same character, and subsequently sues to recover the items withdrawn, he will not be permitted to sustain his action; the debtor cannot thus be vexed, by having the claim split up into separate suits.

But where the demands are separate and distinct, although there is a resemblance between the causes of action, and they belong to the same family, still, if there is not an identity, but they in truth are distinct and different, a creditor may bring several actions for their recovery; the remedy of the debtor in such case is to ask the court for a console Ration of the suits.

Error from the Washington common pleas. Lockwood sued Stevens in a justice’s court, and declared in assumpsit for goodssold and delivered, specifying one barrel of soap and 108 fowls. The defendant pleaded the general issue, and gave notice that he would prove on the trial that, in a former suit against him the plaintiff declared on and brought in an account of which his demand noto presented formed a part, and which could not be separated from the residue of thedemand ihenpre ¡tented. On the trial, the plaintiff proved his demand for the fowls. The defendant then proved the former spit, which was in assumpsit, and that two items of the plaintiffs demand on that trial were as follows ; “ lot of fowls, $8,00; f- bll. soap, $3,25 ;” which items were entered in an account book of the defendant, which was produced in evidence on the trial of

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that cause, and contained the following other items of credit to the plaintiff, viz. “ 1828, balance on the note with Atwood, rent of house, $48 ; rent of house, $9; fixing bedstead, ride to Granville, ; one day’s work, $1,25 ; wood, 98 feet, $1,77 making a total of $123,46, and which account was admitted by the defendant. On the debit side of the account, there were 23 items charged by the defendant against the plaintiff, amounting to $104,03, all of which were admitted by the plaintiff, except one charge of $45, which was the only matter in dispute on that trial. By the defendants’s account book thus produced, it appeared that the first charges were made in July, 1828, and from that time at various dates up to January, 1830; the charges for the fowls and soap were made in July, 1829. Before the cause was submitted, the plaintiff withdrew the two items for fowls and soap from the consideration of the jury who tried the cause, and who found a verdict for the plaintiff, for $35,39. The counsel for the plaintiff stated on the second trial that the two items for foiols and soap were- withdrawn on the first trial, so that the verdict should not éxceed the jurisdiction of the justice. After hearing these proofs, the justice rendered judgment for the plaintiff for nine dollars damages, and costs of suit. On certiorari, the common pleas affirmed the justice’s judgment, and the defendant sued out a writ of error.

J. I. Stevens, plaintiff in pro. per.

W. H. Parker, for defendant in error.

By the Court,

It is difficult to distinguish this case from Guernsey v. Carver, 8 Wendell, 492. There the plaintiff’s account consisted of seven items of merchandize sold and'delivered between the 20th July and 27th August, 1828—amount, $2,35. The defendant pleaded a former suit, and prevailed before the justice. In the common pleas of Monroe, upon appeal, it appeared that the plaintiff had an account against the defendant of twenty articles of merchandize between the 4th June and 27th August, 1828—amount between $5 and $6 ; .that of the first trial, he proved items

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from. 4th June to 19th July. The defendant pleaded a tender and prevailed. The second suit was for items Between the 20th July and 27th August. It was assumed that the first tiaal was after the whole account had accrued. The court decided, that in a running account, where no special contract was entered into, each separate delivery formed a separate cause of action, and that separate suits might be brought for each. ■ This court reversed the judgment, considering the amount one entire and indivisible demand, putting it upon the principle of previous cases. Mr. Justice Nelson says, the whole amount 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. This has been followed since. It is true, that the case particularly referred to, of Miller v. Covert, 1 Wendell, 487, arose upon a contract to deliver three tons of hay. The hay was delivered in separate parcels; but the contract was one. Such also were the cases of Farrington v. Payne, 15 Johns. R. 432, Smith v. Jones, 15 id. 229 and Willard v. Sperry, 16 id. 121.

The case of Philips v. Berwick, 16 Johns R. 136,illustrates the distinction between suits for separate and distinct causes of action, and a second suit on the same identical account, though for different items. The action was for work and labor performed before the 8th of March, 1817. The defendant showed that in September 1817 the plaintiff recovered against him for work and labor, laid in the declaration to have been done on the 8th of March, 1817. The court of common pleas of Montgomery county held it conclusive for the defendant, and nonsuited the plaintiff. This court reversed the judgment, on the ground that the plaintiff might show that the work, &c. was entirely different from that, for which he had, recovered in the former suit, and performed under a distinct contract. Mr. JusticeSpencer says, that there is no case or dictum which requires several and distinct causes of action to be joined in one suit. Theplaintiff may elect to sue upon them separately, and it is no objection that they belong to the same family of causes, provided their identity is not the same. He distinguishes the case then before the court üom Markham v.Middleton,2 Str. 1259,which was

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for an apothecary’s bill for £333, which the court an entire demand ; and it was so considered by Lord Kenyon, in speaking of it. The rule laid down in Guernsey v. Carver, is in accordance with the case of Markham v. Middleton, and with good sense, and is not opposed at all to the principle in Philips v. Berick. It is applicable to this case. Although this is not a merchant’s account, it is one continuous account; and, in the meaning of the preceding cases, indivisible. One suit, and only one, should be sustained. Upon a contrary principle, a separate suit might be brought for every separate item of an account; and twenty, or more, might be brought where only one was necessary.

Judgment reversed.