44 N.Y.S. 915 | N.Y. App. Div. | 1897
In this action it is alleged in the complaint:
“That heretofore, on or about the 24th day of April, 1895, and at divers times between that date and the 24th day of March, 1896, at the said city of Rochester, N. Y„ and upon a term of credit of 30 days (at the expiration of which said term of credit it was understood and agreed that interest" should begin to accrue) and at the special instance and request of the defendant, the plaintiff sold and delivered to the defendant certain goods, wares, and merchandise, consisting of beer, invoices of which have been rendered to the defendant by the plaintiff, to the amount and value of $3,243.76, which said amount the defendant then and there agreed to pay, and upon the terms above set forth. Plaintiff further states that no part of said amount has ever been
In answer to the complaint containing the language we have quoted, the defendant, among other things, averred as follows:
“For a further defense, this defendant alleges that at the time of the commencement of this action there was an action in the supreme court pending and undetermined between the parties hereto, and the same parties, which defendant brought against the plaintiff for damages for a breach of contract and breach of warranty in the contract for the sale of the beer for the purchase price of which this action is brought,-and that plaintiff’s alleged cause of action herein should have been alleged as a counterclaim in the prior action brought by the defendant against the plaintiff; and precisely the same issues and questions are involved in that action as are involved in this, and same is pending and undetermined, and defendant pleads the pendency of such action as a bar to the maintenance of this.”
Under that branch of the answer, evidence was given on the trial which tended to sustain the allegations thereof, after the plaintiff had introduced “evidence sustaining the allegations of the cdmplaint.” The former action was commenced on the 9th of June, 1896; and it was admitted in the course of the trial that the plaintiff in that action is the defendant in this action, and that the defendant in that action is the plaintiff here. This action was begun on June 26, 1896, and the summons, complaint, and answer in the former action were received in evidence in this action. The complaint in the former action, among other things, contained an averment in the following language:
“That on or about the 24th day of April, 1895, plaintiff and defendant entered into an agreement and contract at, Norwich, Chenango county, New York, whereby the defendant was to furnish, sell, and deliver to the plaintiff, at Norwich, Chenango county, New York, quantities of lager beer, to be furnished and delivered at divers times, which beer was to be absolutely pure, fresh, merchantable, and thoroughly and properly made and brewed, and fit, suitable, and proper for first-class beverage; and the said defendant warranted and agreed that the said beer should be of such kind and quality that it would be superior in quality to any beer sold or used in Norwich, Chenango county, New York. That at various times between April 24, 1895, and March 24, 1896, the defendant delivered to the plaintiff, at Norwich, Chenango county, New =York, certain lager beer, purporting to be in fulfillment of and pursuant to the said agreement, for which the plaintiff paid to the defendant the sum of $2,355.18. That the said beer so delivered by defendant to plaintiff was unmerchantable, impure, of inferior quality to the other beer sold at Norwich, improperly made and brewed, contained impure and unwholesome substances, which rendered said beer absolutely worthless and unfit for use as a beverage.” It is also alleged that the purchaser paid $500 for freight, and $2,355.18 “in addition to the said freight charges, making a total sum of $2,855.18.” It is further.alleged: That the value of said beer so furnished,by the defendant to plaintiff was not to exceed the sum of $500, and no more; “and when the said plaintiff objected to some of the said beer, and refused-to receive it, defendant told plaintiff to use the same and do the best he could with it, and defendant promised and agreed to pay and allow to plaintiff damages thereon, and damages to plaintiff’s business, and to malee good all losses to plaintiff and plaintiff’s business caused by the poor quality of said beer, and to make proper allowances and deductions from the agreed price of said beer. That, relying on said promises and agreement, plaintiff used some of the said beer, and undertook to use the remainder thereof, and he retained same under said promises and agreement and contract of the defendant.” It is averred that the beer received “was substantially worthless, and plaintiff*919 could not and cannot use same; that much of said beer proved unsalable as first-class, and plaintiff was and will be compelled to sell the same at a large loss and discount; that, by reason of such failure on the part of defendant to perform its said contract, plaintiff could not fill his orders properly, and he thereby lost a large number of his customers, and sustained a great loss to his business and himself; that he lost the profits he would have made, amounting to at least $1,000, and that he lost the balance of said beer and trade and business to the amount of $2,000; that the plaintiff sustained and suffered damages in the sum of $3,000 by reason of the said beer being worthless, impure, poor, unmerchantable, sour,, improperly brewed and made, and being of an inferior quality, and by reason of the defendant’s failing to perform its said contract and agreement according to the provisions of same; that defendant has refused to make such loss good," or keep or perform its said contract.”
The complaint in this action evidently relates to the same agreement, the same subject-matter, set out in the complaint in the first action.
In Lewis v. Maloney, 12 Hun, 207, it was said, viz.:
“Where there are two proceedings pending between the same parties for the same object, the proceedings first commenced are a bar to those commenced afterwards. The principle governing such cases is that, if full relief can be had in ihe one proceeding or action, no other shall be allowed,”—citing Rogers v. King, 8 Paige, 210; Groshon v. Lyon, 16 Barb. 461; Reich v. Cochran, 151 N. Y. 127, 45 N. E. 367.
In Porter v. Kingsbury, 77 N. Y. 167, it was said:
•‘The plea of a former suit pending between the parties for the same thing was allowed, to prevent vexatious and oppressive suits; and, if sustained, the second writ abated, and judgment passed for the defendant.” It was further said in the course of the opinion in that case “that it must appeal- of record that the two actions are for the same cause, and that the first writ was pending ‘when the second writ was purchased.’ ”
In Bank v. Leonard, 20 How. Prac. 197, it was said:
“A matter which is necessarily involved in the former suit, and which may be litigated therein, cannot be the subject of a second action. ® * * Parties must assert their rights, whether legal or equitable, at the first opportunity.”
According to the evidence, the defendant here had joined issue in the former action upon the same agreement that is alleged in the complaint in this action. The foregoing views, as well as those expressed in the opinion of the trial judge, lead to an affirmance.
Judgment affirmed, with costs. All concur.
