Beck v. Devereaux

| Neb. | Jul 15, 1879

Lake, J.

The rule is doubtless well settled, as contended for • by the plaintiff in error, that an indivisible demand cannot, at the will of the plaintiff, be separated, and collected by several actions. It is against the policy of the law to permit a debtor to be subjected to the expense and annoyance that would necessarily result from such a course. ' If a plaintiff bring an action for a part only of an entire and indivisible demand, whatever it may be, the judgment in that suit may be pleaded as a e'omplete bar to another action for the residue. Smith v. Jones, 15 Johns., 229" court="N.Y. Sup. Ct." date_filed="1818-05-15" href="https://app.midpage.ai/document/smith-v-jones-5473990?utm_source=webapp" opinion_id="5473990">15 Johns., 229. Willard v. Sperry, 16 Id., 121. Colvin v. Corwin, 15 Wend., 557" court="N.Y. Sup. Ct." date_filed="1836-07-15" href="https://app.midpage.ai/document/colvin--van-patten-v-corwin-5514659?utm_source=webapp" opinion_id="5514659">15 Wend., 557. Avery v. Fitch, 4 Conn., 362" court="Conn." date_filed="1822-07-15" href="https://app.midpage.ai/document/avery-v-fitch-6573684?utm_source=webapp" opinion_id="6573684">4 Conn., 362.

But, as was well said by Spencer, J., in Phillips v. Berick, 16 Johns., 136" court="N.Y. Sup. Ct." date_filed="1819-01-15" href="https://app.midpage.ai/document/phillips-v-bericic-5474120?utm_source=webapp" opinion_id="5474120">16 Johns., 136 : “ There is no ease, or dictum, which requires the party to join in one suit several and distinct causes of action.” Provision is made in our code of civil procedure, however, whereby the defendant, in several actions “ which might have been joined,” may require them to be consolidated. Gen. Stat. 547. And that course was open to the plaintiff in error in the county court,, but he did not seek to avail himself of it. Undoubtedly that court would have at once ordered such consolidation had a motion to that end been made.

While the defendant in error might very properly have included the entire account for the two months in one action, he was under no legal obligation to do so. It is shown by the stipulation of facts that, “by express agreement between the parties ” the amount of the account for cigars sold during each month was, at the end thereof, “ due and payable,” and bills therefor were made out accordingly. Under this arrangement the account for the sales of each month was an independent demand, and, if not paid according to the agreement, would draw interést from the time it fell due. Under these circumstances we think it is very clear that the account for each month may, and indeed should, be regarded as a separate and distinct cause of action, and that a recovery for the cigars sold in January is no bar to an action for those sold in December. The judgment of the district court was clearly right, and is affirmed.

Judgment aeeirmed.