98 F. 699 | 2d Cir. | 1899
In March, 1892, the parties entered into a written contract, by which the plaintiff became the exclusive agent for the sale of electric appliances and machinery which the defendant was then producing. Article 13 of the contract provided that the defendant should protect the plaintiff “from loss arising from mechanical or electrical defects in goods of their manufacture.” On February 2, 1894—
“The defendant was indebted to the plaintiff for causes growing out of this contract, and was also indebted to certain banks in the city of Hartford, and, in order to enable it to continue in business, it became necessary for it to make esrns compromise of said claims, and to that end it was on said day agreed between the plaintiff and defendant that the defendant, by way of compromise, should pay to the plaintiff, and the plaintiff should accept in payment of these claims, the sum of fifteen thousand dollars ($15,000) in the preferred stock of the defendant company at its par value, and pursuant to said agreement the defendant delivered to the plaintiff, and the plaintiff accepted, a certificate for said one hundred and fifty shares of said preferred stock, hut it was made by agreement an express condition of said compromise 1hat the said banks in Hartford to which the defendant was indebted should take the entire amount of their claims in the preferred stock of said company on or before January 1885, and that there should be not less than fifteen thousand dollars (⅞15,000) in cash put into the business of the company for the purpose of continuing it in business, and the plainüffi’s right of action upon the claims in this suit was suspended until after the 1st day of January, 1895.” “The banks in Hartford did not take any amount of their claims In the preferred stock of the defend*700 ant, either before or after January 1, 1805, the sum of fifteen thousand dollars ($15,000) in cash was not put into the business of said company for the purpose of continuing it, and the defendant company did not continue in business.” “On the 17th day of January, 1895, the plaintiff tendered back to the defendant company the one hundred and fifty shares of preferred stock, and notified it that the conditions upon which the stock had been received had-not been fulfilled, and that the agreement was, therefore, null and void.”
On August 9, 1894, the plaintiff brought a suit in the circuit court oí the United States for the district of 'Connecticut against the defendant to recover, under the provisions of article 13, for losses which had arisen to it as selling agent, and for moneys due as commissions and otherwise. No cause of action in this suit was included in the agreement of February, 1894. More particular statements in the complaint and bill of particulars were given of these claims. The cause was tried by the court, a jury having been waived, and judgment was rendered in April, 1897, for the defendant to recover, under a claim of set-off, one dollar and costs against the plaintiff. On January 17,1895, after the agreement of compromise came to an end, the plaintiff brought a second suit in the same court against the defendant to recover for the amount due upon the claims which were attempted to be compromised, which consisted of losses for which indemnity had been promised by clause 13, and of moneys due to the plaintiff as a selling agent, which were sought to be recovered under the common counts. The defendant pleaded in bar the judgment in the first suit, upon the ground that the causes of action set forth in both suits were breaches of the same clause, and accrued, if at all, before the bringing of the first suit, and that the items in the bill of particulars in each suit were under the same contract, and matured before the date of the first suit, and that all the causes of action in the second suit might have been included in the issues upon the trial of the first suit. The reply to this answer set up the matter contained in the agreement of compromise of February, 1894, to which the defendant demurred. The demurrer was sustained by the court, and this writ of error was brought to review the judgment for the defendant. (C. C.) 87 Fed. 795.
It is conceded that what is commonly known as “splitting a cause of action” is denounced by courts, or, as it is stated in Secor v. Sturgis, 16 N. Y. 548:
“The rule is fully established that an entire claim cannot be divided, and made the subject of several suits, and, if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment in either will be available as a bar in the other suits.”
It is said in Welles v. Rhodes, 59 Conn. 498, 22 Atl. 286:
“It is now an established principle in our law of civil procedure that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights or to both, when such determination can be had as effectually and properly in one suit.”
The courts of Connecticut have been rigorous in the enforcement of this principle. Pinney v. Barnes, 17 Conn. 420; Town of Marlborough v. Sisson, 31 Conn. 332; Burritt v. Belfy, 47 Conn. 323; Wildman v. Wildman, 70 Conn. 710, 41 Atl. 1.