45 Pa. Super. 320 | Pa. Super. Ct. | 1911
Opinion by
This is an action of trespass brought to recover damages for the refusal of the defendant company to pay checks drawn by the plaintiff against his deposit with it, and for paying the money by the defendant to another party.
On July 14, 1904, the plaintiff was a depositor in the defendant company. A dispute arose as to the amount and ownership of his deposit. Afterwards he drew several checks against his deposit, payment of which were refused. A year after payment of the last check was refused he sued the defendant in assumpsit and declared for the amount of his deposit, with interest. That suit was begun on August 31, 1905, and final judgment was entered therein on October 9, 1905, for $474.67, being the amount of the plaintiff’s claim with interest, and this judgment and costs were paid by the defendant.
On November 13, 1905, the plaintiff began a suit in trespass for damages alleged to have been caused by the refusal of the defendant company, to pay on demand the same money recovered in the above action of assumpsit. This latter suit was tried in common pleas No. 1 of Philadelphia county, and on February 17, 1910, a verdict rendered in favor of the plaintiff for $483.50. Before verdict defendant’s counsel moved the court to instruct the jury that, “Under all the evidence the verdict must be for the defendant.” This point was refused and the case went to the jury. After verdict defendant moved for judgment non obstante veredicto upon the whole record. The court dismissed this motion and judgment was entered for the plaintiff upon the verdict. To this action of the court a bill of exceptions was sealed at request of defendant’s counsel, and the defendant appealed.
• The trial and final judgment in the assumpsit case settled the question that the defendant was in the wrong in refusing to pay plaintiff’s checks and in paying over his deposits to another party, and we do not propose to discuss the merits of that case. That judgment established the fact that the defendant had money of the plaintiff
The single assignment of error is: “The Court below erred in dismissing the defendant’s motion for judgment non obstante veredicto upon the whole record, as follows,” etc., quoting the motion.
The single question raised for our decision is, Could the plaintiff sue in assumpsit for his money on deposit with the defendant company and recover a final judgment for the same, with interest as damages for its detention, and thereafter sue and recover in this action of trespass damages to his credit, or otherwise, for the refusal of the defendant to pay on his orders and demand the same money? We are without doubt that this question must be answered in the negative, and our purpose here will be to demonstrate as briefly as may be, from the text-writers and decided cases running back nearly to the Revolution, that the first judgment when put in evidence in the present case was a complete bar and the court should have directed
The principle here involved is that a plaintiff cannot bring two separate suits for one cause of action and carry both suits to final judgments. Decisions in all jurisdictions establish the principle that a plaintiff cannot try his suit in parts. There is no doubt about this rule. The principle has been stated in the text-books thus: “A controversy once determined, resulting in a final judgment upon the merits, by a tribunal having jurisdiction of the person and the subject-matter of the action, is conclusive of the cause of action and all the essential facts in said action against the parties, their personal representatives, assignees and privies in every other tribunal, and not only concludes such parties and their privies in a subsequent action based upon the same cause or causes, but in any action that may be instituted between them and their privies: ” 1 Herman on Estoppel, sec. 133.
“A judgment decides every matter which pertains to the cause of action or the defense set up, or which is involved in the measure of relief'to which the cause of action or defense entitles the party, even though such matter may not be set forth in the pleadings, so as to admit proof and call for an actual decision upon it. Whenever a matter is adjudicated and fully determined by a competent tribunal, it is considered forever at rest:” 1 Herman on Estoppel, sec. 125.
“Rejecting, therefore, all those portions of the pleading which describe the remedy or the relief demanded, the inquiry should be directed exclusively to the allegations of fact which set forth the primary right of the plaintiff and the wrong done by the defendant. If one such right alone, however comprehensive, is asserted, and if one such wrong alone, however complex, is complained of, but one cause of action is alleged:” Pomeroy’s .Code Remedies (4th ed.), sec. 351. When the plaintiff deposited his money with the defendant company and the latter
The plaintiff’s cause of action was damages resulting from the refusal of the defendant company to pay his money on deposit with it on demand, and the plaintiff was bound to recover all of the damages he suffered thereby in one suit. Whether that suit should be in assumpsit or trespass on the case was at the option of the plaintiff. We think the authorities are uniform on this point. In First Nat. Bank of Tamaqua v. Shoemaker, 117 Pa. 94, the Supreme Court held: “That a depositor could sue the bank to recover damages for dishonoring his check, or he could bring an action in assumpsit to recover the amount of his deposit as for money had and received; .... that he may sue the bank in tort for the wrong done, or in assumpsit for the breach of the implied contract to honor promptly the customer’s checks. In such action nominal damages may-be recovered though no actual damages be shown.” That case alone decides that the plaintiff was bound to declare for and recover his damages in the action of assumpsit.
In Citizens’ Nat. Bank v. Bank, 119 N. Y. 195, it was decided that a failure of a bank to obey an order for the payment of money standing to the credit of the drawer of the check was a breach of the defendant bank’s duty and contract, for which it is legally liable either in tort, or upon the contract. To the same effect is Burroughs v. Tradesmen’s Nat. Bank, 87 Hun, 6. In England the law is the
The important fact for consideration in the present case is that there is one wrong and only one when a bank refuses to pay a deposit on a depositor’s order. The law often gives a choice of remedies but never did allow a man to have two civil remedies for the same wrong, and permit him to pursue one and then the other. A double civil satisfaction for the same wrong is unknown to the law. It is clear that the right of action which the plaintiff had when the defendant company refused to pay his deposit resulted from the relation between banker and depositor. The refusal of the bank to pay was the cause of action, and from this his remedy sprung.
On August 31, 1905, plaintiff sued in assumpsit. He could at that time have done one of three things—First: He could have sued in assumpsit and claimed not only his deposit and interest thereon, but damages for breach
In Logan v. Caffrey, 30 Pa. 196, there was an action for wages and some of the items were withdrawn for want of evidence. Judgment was entered for the balance. Then the plaintiff brought action for the items withdrawn in the first suit. The defendant offered in evidence the record of the former suit. There was a verdict for the plaintiff but the Supreme Court reversed the judgment thereon. In that case, among other things, the Supreme Court said: “So where a tort consists in wrongfully taking several chattels, a plaintiff is not at liberty to split up his cause of action into as many parts as there are chattels; but if he recovers in an action for part, it concludes him as to the whole.” Alcott v. Hugus, 105 Pa. 350, is another case to the same effect; see also Head v. Meloney, 111 Pa. 99; Buck v. Wilson, 113 Pa. 423.
Another important case is Hill v. Joy, 149 Pa. 243. The plaintiff had leased oil lands to the defendant, and was to receive a portion of t&e oil. He sued the defendant and recovered a verdict for royalties due him for oil taken out of the land. He then sued again, claiming damages
In Bendernagle v. Cocks, 19 Wendell, 207, the court held: “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.” Griffin v. Long Island R. R. Co., 102 N. Y. 449, contains a clear and concise statement of the law on this question.
The operation of the rule we have been discussing is independent of the form of action, This was expressly decided in Finley v. Hanbest, 30 Pa. 190, where Mr. Justice Woodward, speaking for the Supreme Court, said: “It is not material, I agree, that the former suit was in tort, and this one in contract; for where the same matter has been previously adjusted, the .effect of the adjudication is not dependent upon the form of action.”
The court below- and the counsel for appellee seem to rely entirely upon the two cases of Patterson v. Marine Nat. Bank, 130 Pa. 419. Those cases are well reported and they grew out of a transaction quite similar to the one giving rise to the present suit and the former action of assumpsit to which we have referred. On December 31, 1887, to No. 508, January Term, 1888, in the court below, the plaintiff brought assumpsit against the Marine National Bank of Pittsburg to recover a balance alleged to be due the plaintiff upon a deposit account opened by him with the defendant bank. Issue. On the same day, to No. 509 of the same term, an action in case, ■ between the same plaintiff and defendant, was brought to recover damages for a refusal by said bank to honor a check drawn by the plaintiff upon his said account. Issue. The two
Doubtless the method of trying the cases resulted in the
It is idle to contend that the Supreme Court,- in the brief opinion filed, intended Patterson v. Marine Nat. Bank, 130 Pa. 419, to overrule the long line of cases upon the subject involved in the present controversy, running from the organization of our courts down to the present time.
There is an additional reason why the action in assumpsit was a bar to the present suit and that is that the evidence in the second suit would have been equally available in the first suit. In Raisig v. Graf, 17 Pa. Superior Ct. 509, we said: “When the evidence in the second suit would have been equally available in the first suit, then the verdict and judgment in the first suit is an absolute bar to any recovery in the second.” The foregoing rule is supported by many Supreme Court cases. It requires no argument to demonstrate that the evidence competent to sustain the plaintiff’s claim in the second suit would have been competent and pertinent in the action of assumpsit.
The assignment of error is sustained, and we now direct the court below to enter judgment on the whole record in favor of the appellant non obstante veredicto, with all costs, including those of this appeal.