Johnson v. Prineville

196 P. 821 | Or. | 1921

BUBNETT, C. J.

Substantially, the only questions argued before us are that this suit amounts to a splitting of the plaintiffs’ cause of suit, and that it is an effort to enforce an award by suit, when the only remedy in such case is by an action at law.

1. It is plain that the contract involved is an entire contract. The work was not to be done by installments. On the contrary, there was but a single task to be performed for a single compensation. Normally, only a single cause of suit or action would arise out of a breach of such a contract, so that the principle applies that no one can be twice vexed for the same cause of suit or action. There are, however, exceptions to this rule. The principle is thus stated in an exhaustive note to Vineseck v. Great Northern Ry. Co., 136 Minn. 96 (161 N. W. 494), as reported in 2 A. L. R. 530, 534:

“While it is a well settled and familiar rule that a single claim, arising either on contract or in tort, cannot be divided and made the subject of several suits; and, if several suits be brought for different parts of a claim, a judgment on the merits in either will be available as a bar to tbe other suits (see 15 E. C. L., title, Judgments, p. 965), there are certain well-recognized exceptions to the rule. Thus, where it appears that the plaintiff had no knowledge or means of knowledge of the omitted items, his ignorance will excuse him, and a judgment in the first action will not bar a subsequent action to recover on the omitted items”: Citing many authorities.

2. The rule against splitting a cause of suit or action is for the benefit of the defendant and he may waive the same either expressly or by conduct which amounts to a waiver. As stated in Gerhart v. Fout, 67 Mo. App. 423:

“The rule is not * * that a person cannot split his cause of action, but that he cannot split it without his debtor’s consent.”

In Edmonston v. Jones, 96 Mo. App. 83, 91 (69 S. W. 741), it is said:

“Even the splitting of a cause of action amounts to nothing, if the party affected thereby consents to it.”

Analogous to the doctrine based on the consent of the defendant is the teaching of Cook v. Vimont, 22 Ky. (6 T. B. Mon.) 284 (17 Am. Dec. 157). There, Vimont had sued Cook on certain money accounts and was cast in judgment. Afterwards Cook admitted the claims of Vimont and promised to pay them. Upon this promise Vimont sued in the ease reported, and it was held that the former judgment was not a bar, because the obligation of the new promise constituted a new and different cause of action. In the case of Snow Steam Pump Co. v. Dunn, 119 N. C. 77 (25 S. E. 741), the plaintiff had against the defendant an unsecured claim of $92 and another amounting to $2,573 secured by a mortgage. The plaintiff intervened in a creditor’s suit against Dunn as to the $92 claim only, and a judgment was rendered in that suit. It was held, however, that the decree there did not bar the plaintiff’s suit to foreclose the mortgage. In substance, the two demands were of different classes and action on one did not bar suit on the other. Again, in Ebersole v. Daniel, 146 Ala. 506 (40 South. 614, 119 Am. St. Rep. 52), the defendant had given his note as part payment of an account he owed the plaintiff. The latter took judgment upon the note and the defendant paid that judgment. Afterwards the plaintiff sued for the balance of the account. The defendant pleaded the judgment on the note in bar, but his plea was overruled, the court holding that it did not constitute a splitting without the consent of the defendant.

3. So, in this case, if no arbitration had been had, there would have been but one cause of suit to set aside the final estimate and award of the engineer. That estimate was based upon and made up according to the judgment of the city engineer as to classifications and quantities. By agreeing to the arbitration of Newell, the judgment of Newell as to classification was substituted for that of the city engineer, thus creating a cause of suit having an entirely different basis from the one ordinarily arising out of the contract. By consenting to the substitution of Newell’s judgment for that of its own engineer, the city agreed, substantially, to a splitting of the cause of suit.

It is said, however, in argument that a bill in equity will not lie to compel the specific performance of an award merely for the payment of a sum of money, the remedy afc law being adequate in that case. The award here involved, however, is not one for the mere payment of money. The Newell award disposed of only one element entering as an ingredient into the final estimate to be made np by the city engineer. There was yet cast upon the latter the remaining duty to make a true estimate of quantities, and to use in his estimate the classification established by the Newell award. Notwithstanding that, the final estimate he actually made was binding at law, and in order to correct it the plaintiffs were obliged to sue in equity to set it aside and to recover on a true estimate as governed by the rules the parties had prescribed for themselves, among which was the award of Newell as to classification. The conclusion is that so far as the rights of the parties are affected by the Newell award alleged in the present complaint, the plaintiffs have a separate cause of suit against the defendant, but no further. In its operation upon the chose in action or suit otherwise arising upon the contract in the absence of arbitration, the Newell award constitutes an exception, founded on the consent of the parties, to the rule against splitting demands. All claims not affected by the exception are governed by the rule and are properly cognizable in and controlled by the decree in the other suit.

4, 5. An action at law would not lie to enforce the award, because only a part of one element of the contention between the parties was submitted to the arbitration. A judgment at law would not have any foundation in a complaint which only averred the Newell arbitration of percentage classification without more. If, upon proper agreement to arbitrate, the arbitrator had found that so much money was due from the defendant to the plaintiffs, the remedy of the latter would have been to bring an action at law for the money allowed them by the award. But by agreement of the parties the award was limited in its extent. It was designed only partially to control the action of the engineer in making up Ms final estimate. In that be departed from the award as alleged in the complaint, he has made a situation from which equity will relieve the plaintiffs by setting aside the award wMch otherwise would be binding at law, reforming it, and enforcing it as thus reformed, by a decree in equity.

The complaint does not state a cause of suit. According to its averments, the splitting of the cause of suit was based upon the consent of the parties to the Newell arbitration. Upon a cause of suit to set aside the final estimate of the engineer based upon his own classification, which naturally would include the whole dispute as to the entire contract, the parties, by submitting one element of a part of the dispute to arbitration, have by consent created a new and different cause of suit as to the part arbitrated. In brief, they themselves have split the original cause of suit into two parts, each resting on a different basis, one of which is cognizable in the former suit, and the other in the present litigation.

There was error in sustaining the demurrer.

The cause will be remanded to the Circuit Court for further proceedings not inconsistent with this opinion. Reversed and Remanded.

Bean, Benson and Brown, JJ., concur.