207 Pa. 478 | Pa. | 1904
Opinion by
On December 22,1898, the plaintiff in this case brought suit in the supreme court of New York against the sheriff of the county of New York for an unlawful entry upon his premises and the seizure and conversion of. his stock of merchandise. About four weeks later, on January 18, 1899, he discovered in the possession of Solomon & Ruben, in the city of Pittsburg, a portion of his goods, which had been seized by the sheriff, and immediately instituted this action of replevin to recover them. On May 22,1899, the suit against the sheriff in New York was called for trial and, after an amendment had been allowed, striking from the bill of particulars annexed to the complaint the specific articles for which this replevin was brought, a verdict was rendered in favor of the plaintiff for $15,000 as damages for the conversion of the larger portion of the goods that had been unlawfully seized. On the trial of the present case the jury found for the plaintiff for the value of his goods in the possession of Solomon & Ruben, but the court subsequently entered judgment in favor of the defendants, non obstante veredicto, for the reason that the suit and recovery by the plaintiff in New York were a bar to this action. The entry of this judgment is the error assigned.by the appellant.
When the amendment was made to the complaint or declaration in New York, it related back to the institution of the suit, and the complaint as amended showed specifically the articles which the plaintiff claimed had been unlawfully seized and converted by the sheriff, and for the value of which he had
In entering judgment for the défendant the learned judge below relied on Logan v. Caffrey, 30 Pa. 196. There is not the slightest analogy between the two cases. Caffrey, a day laborer who had been employed by Logan, sued him on the contract of employment in the district court of Philadelphia for wages during a period of service extending from July, 1854, to November, 1855. In his bill of particulars there was an item of $67.25 for “ 67£ days’ work, between November 7,1854, and February 5, 1855, at $1.00 per day.” On the trial, not having offered any evidence in support of this item, he withdrew it from the consideration of the jury, with leave of the court, reserving his right to bring an action for it. There was a verdict in his favor for the balance of his claim. Subsequently he brought the second action to recover this item of $67.25, and Woodward, J., said: “If the former judgment was on the same contract and that an entire and indivisible one, it would have been, as a plea, an estoppel of the plaintiff, and -was, as evidence under the general issue, a conclusive bar against his action. A party can have no second action on such a contract, not even on clear proof that no evidence was given as to part of the demand in controversy: Hess v. Heeble, 6 S. & R. 57; Carvill v. Garrigues, 5 Barr, 152; Brockway v. Kinney, 2 Johns. 210; Miller v. Manice, 6 Hill, 122. The language of Chancellor Walworth, in the last cited case, was: ‘If the same question was submitted to the jury in the first action, and the evidence in the last suit, if it had been given in the first action, would have been equally available as in the last to entitle the plaintiff to recover under the state of the pleadings in both, then the verdict and judgment in the first action, provided the defense is brought before the court in the second suit in proper form, is an absolute bar to any recovery therein.’ .... Can a hireling, then, after periods of service under such a contract, bring separate suits for each day he wrought ? As well might the shopman bring separate suits for the tea, coffee, and
Even between the same parties, where the same facts give rise to two distinct causes of action, action and judgment for one of these causes will be no bar to an action on the other: Pollock’s Law of Torts, 165. With the parties different here, with the forms of action different, with the cause in the one having been the wrongful conversion of some of the plaintiff’s
The judgment for the defendant non obstante veredicto is reversed and the record is remitted, with direction that judgment be entered for the plaintiff on the verdict for $8,525, with interest from February 24, 1902.