56 So. 17 | Ala. Ct. App. | 1911
This is an action to recover damages resulting from the breach of a contract entered into on or about the 1st day of March, 1909, under which the plaintiff was to haul for. the defendant, for the remainder of that year, all the coal and graphite to be hauled to and for the defendant’s graphite mines, other than what should be hauled by two teams belonging to the defendant, the contract naming the price to be paid, and stipulating for monthly payments tó be made on the regular pay days of the defendant, which were the fifth day of each month. The complaint alleged that, though the plaintiff, was ready and willing to perform the contract on his part, defendant did not permit him to do the hauling stipulated for, but had it done by others; and the damages claimed were based on losses suffered by plaintiff in consequence of defendant’s breach of the contract during the months of November and December, 1909. The defendant pleaded in abatement of this action the pendency of a suit previously instituted by the plaintiff against the defendant, alleged to be based on the same cause of action as that which is the basis of this suit. On the trial of the issue made on that plea, the court, on proof of the pendency of a former action, instituod, on November 13, 1909, by the
We are of the opinion that the court was in error in its conclusion that the proof offered supported the averments of the plea in abatement. The ruling of the court seems to have been based on the assumption that, the effect of any breach of the contract by the defendant was to vest in the plaintiff a single and indivisible cause of action, and that the bringing of this suit while the former suit was pending was in disregard of the rule against splitting a single cause of action into two or moije suits. The assumption was unfounded. The rule mentioned is not applicable to the state of facts disclosed by the proof in this case. Under a contract for services to be performed during a stated period, which provides for monthly payments to be made for the services performed durjng each month included iu such period, a breach of the contract during any month, having the effect of depriving the plaintiff of a payment which would have been due to him at the end of that month if he had been permitted to perform the stipulated services during that month, is the foundation of a distinct cause of action, and the several monthly breaches are not to be considered as together, constituting one indivisible and entire cause of action. “It is only an indivisible and entire cause of action which cannot be split up and divided into several causes of action, so as to authorize recovery for divided parts of it. Where a sum of money is payable in installments, the rule in this state is to consider each default of payment a separable and disconnected cause of action, up
This case illustrates the propriety and justice of the rule above stated. When the suit which was pleaded in abatement of this action was brought a claim by the plaintiff to the damages he afterwards sustained by the continued refusal of the defendant to permit him to do the hauling had not accrued, and could not have been asserted or proved when that suit was brought, as the nature of the contract was such — by its terms the plaintiff being entitled to do only such hauling as the defendant required in addition to what was done by its own teams — that whether or not during any month the
Reversed and remanded.