Atlanta Elevator Co. v. Fulton Bag & Cotton Mills

106 Ga. 427 | Ga. | 1899

Lumpkin, P. J.

The Atlanta Elevator Company brought an action against the Fulton Bag & Cotton Mills, which was dismissed on demurrer, and the plaintiff excepted. The substance of the plaintiff’s petition, the amendment thereto, and the demurrer appear in the official report. We have no difficulty in reaching the conclusion that the judgment complained of was correct. Nothing is better settled than that the measure of damages for refusing to pay money due to another is the interest lawfully accrued. Another well-settled principle is, that “if a contract be entire, but one suit can be maintained for a breach thereof.” Civil Code, § 3793. And see, in this connection, Desvergers v. Willis, 58 Ga. 388; Evans v. Collier, 79 Ga. 319; Thompson v. McDonald, 84 Ga. 5, holding that “ an account resulting from a single contract can not be split into two causes of action, the whole being mature when the first action was brought”; Allen et al. v. Stephens, 102 Ga. 596; Broxton v. Nelson, 103 Ga. 327. The mere fact that a creditor is poor, and on account of his distressed circumstances needs money due him, gives him no more right to sue a debtor for an amount admitted to be due upon a single account, reserving the right to sue for a balance in dispute, than would have a millionaire to arbitrarily cut up and bring separate suits upon a single cause of action against a debtor of the latter.

It was earnestly insisted in the argument made here for the plaintiff in error, that inasmuch as the original action had been voluntarily dismissed without having been carried to judgment, the fact that it had been brought presented no legal obstacle to the bringing of the second action — the one now under review. If the first action had been totally unproductive — that is, had been merely brought and dismissed — the plaintiff might very well have begun another suit, and therein have claimed a larger amount than that named in the first one. But we are not dealing with a case of that kind. Taking in view all the allegations of the present petition and the amendment thereto, it plainly appears that the plaintiff accomplished all it sought to do by bringing the original action. It sued for a specified amount of money. The defendant tendered, and the plaintiff accepted, this identical amount, practically, if not professedly, in full settlement of all it claimed in that action. This was an end of the matter. After receiving full payment of all it had sought to recover, and in the absence of any agreement as to what disposition or direction should thereupon be given to the ■case, no other course was left to the plaintiff except to dismiss. The result therefore was, to all intents and purposes, just the same as would have been reached had a judgment been rendered in the plaintiff’s favor and subsequently paid off. The first suit was as much functus officio as it would have been had it taken the direction just indicated. We therefore feel warranted in dealing with the case now before us precisely as we would do had the plaintiff enforced by judgment the collection of the amount for which it sued in the first instance.

The foregoing disposes of the plaintiff’s present action, in so far as it relates , to the balance alleged to be due to it upon account. The action for such balance not being maintainable for the reasons stated, it follows that the plaintiff can not recover therein damages on account of alleged bad faith and litigiousness on the párt of the defendant, growing out of the transactions between them. Any claim arising on this account could and should have been asserted in the first action.

Judgment affirmed.

All the Justices concurring.