Johnson v. Klassett

9 Ga. App. 733 | Ga. Ct. App. | 1911

Hill, C. J.

(After stating the foregoing facts.)

The questions of law raised by the facts in this case seem never to have been distinctly decided by our Supreme Court, but the principle involved has been before the court on several occasions, and we think is embraced in § 4389 of the Civil Code of 1910, which declares that, “If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by instalments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.” It is true that this section relates by its terms to breaches of a contract. But in the case of Floyd v. Cox, 72 Ga. 147, the Supreme Court construed a running-account, continuing through several consecutive years, where it was added up at the end of each year, the credits subtracted, and the balance carried forward to the next year, as one entire claim, — “one account and one indebtedness.” In Thompson v. McDonald. 84 Ga. 5 (10 S. E. 448), it was held that “an account resulting from a single contract can not be split into two causes of action, the whole being mature when the first action was brought.” That was a suit on an account for sawing lumber. Certain of the items of the account had been included in a former suit, but, on the trial of the former suit, were stricken from the bill of particulars. The Supreme Court held that there could be no recovery in the second suit, because when the first suit -was brought, the items now sued for, as well as the rest of the general account, were due, and, the plaintiff having voluntarily withdrawn these items from the account, a second suit could not be brought for them, “the mile being that all breaches of a contract up to the time of bringing action on the same must be included in the one action;” citing Macon & Augusta R. Co. v. Garrard, 54 Ga. 327; Evans v. Collier, 79 Ga. 319 (4 S. E. 266). In the case of Atlanta Elevator Co. v. Fulton Mills, 106 Ga. 427 (32 S. E. 541), it was held that a creditor can not bring an action against his debtor for an amount admitted to be due upon an account resulting from a single contract, the whole debt being mature when the suit is brought, and afterwards maintain a second action for the balance alleged to be due on the same account in excess of the amount originally sued for.

The whole question resolves itself into this: Was the general running account against the defendant a divisible demand, which could be separated at the will of the plaintiff and collected by several actions ? If the running account was an entire and indivisible demand, the judgment in the suit for the account due in 1906 was a good plea in bar to the account for 1905; for, at the time of this second suit for 1905, all the items of the account were matured and past due. The case of Parris v. Hightower, 76 Ga. 631, is relied upon by plaintiff in error. In that case, however, it seems that there was an express agreement that the account for goods sold on the same day should be divided into four distinct parts due on different dates, and, in view of this agreement, the Supreme Court held that the plaintiff had the option to bring separate suits on each portion of the account, or to unite them. In a well-considered case by the Supreme Court of Iowa (Williams-Abbott Electric Co. v. Model Electric Co., 134 Iowa, 665) it was held that “the sale of goods, although at different times and upon different orders, payment for all of which has matured, constitutes but a single demand, and separate suits based upon each distinct order and sale can not be maintained, although in itself a complete transaction; and a recovery upon one such order and sale is a bar to an action upon the other sales then due.” And in speaking for the court the learned Chief Justice says (p. 668) :. “The proposition that a continuous book account is entire, and can not without agreement of the parties be split into separate and distinct demands to form a basis for several suits, is one'which has general recognition by the authorities, and is no longer open to question;” citing many authorities in support of this proposition. All of these authorities uphold the contention that an account consisting of several items, all of which are due and payable, constitutes but one demand, and if the party to whom the account is due sees fit to bring suit for a part thereof and recovers judgment, such recovery will be a bar to further suit upon the remainder of the claim. See, also, to the same effect, Buck v. Wilson, 113 Pa. St. 423; Hughes v. Dundee Trust Co., 26 Fed. 831, and many cases there cited. All of these cases are based upon the principle that both law and equity abhor a multiplicity of suits, and will not permit a plaintiff to divide the items of an account then due, for the purpose of harassing the defendant and subjecting him to unnecessary suits. The only just and sound rule — a rule just to both parties — is to compel the plaintiff, where all of the items of the account are due when suit is brought on a running account, to include the whole account in a single suit. In the case now under consideration, if the plaintiff had the right to split the account for $130 into two parts, thus bringing it within the jurisdiction of the justice’s court, and unnecessarily harass the defendant with two suits, he could have split the account into weekly amounts and brought any number of suits against the defendant; which would have been an intolerable hardship and one which the law would not permit.

It is therefore clear to our minds that the plaintiff should not have been permitted to divide this account into two parts for the purpose of obtaining jurisdiction in the justice’s court, but the suit should have been relegated to the court having jurisdiction of the entire amount. This would not have deprived him of the right of asserting any part of his claim, but would simply have compelled him to assert his entire claim in one suit. The proper place to make this question was the place where it was raised — in the superior court — when the first case in which a judgment was rendered was tried. Then and there the plaintiff’s right to split his account into two parts was directly challenged; and, in our opinion, it being conceded that there was but this one .account, this plea should have been sustained; but, through an erroneous view of the law, this plea was decided against the defendant’s contention, and judgment was entered up against him accordingly. He submitted to this judgment, and the cuestión was therefore res adjudicata so far as he was concerned, and he could not be subsequently heard, in answer to the second suit, to raise the same question which had been decided by the superior court, and in the decision of which he had acquiesced. There must be an end to litigation, and the end was reached on this point, so far -as the defendant was concerned, when the question was raised by the suit tried in the superior court and decided against him and he submitted to the decision. For this reason we are constrained to hold that the learned judge of the superior court erred in sustaining the certiorari.

Judgment reversed.