162 A. 370 | Vt. | 1932
The action is contract and was heard below by the court upon an agreed statement of facts, and also the testimony of the defendant taken at a previous hearing between the parties which was made a part of the agreed statement by reference. The files and docket entries of the previous trial are by reference made a part of the agreed statement. No supplemental facts were signed and filed by the trial court. Judgment was entered for the plaintiff. The defendant excepted to the judgment on the ground that it was contrary to and not supported by the agreed facts.
The facts agreed to by the parties cannot be supplemented on review by a mere reference to testimony and exhibits. If any additional facts are required to support the judgment, they should have been found by the trial court from the evidence presented. Hooper, Trustee v. Kennedy,
The defendant argues from a so-called motion to set aside the judgment, which was overruled by the trial court, that the judgment is erroneous because, (1) the plaintiff should have recovered in the first action all sums of money due it under the contract, which formed the basis of recovery in that action, and (2) the agreed statement of facts does not disclose any authority either express or implied authorizing Bernard Dirks to enter that portion of the contract which the plaintiff now seeks to rely upon.
While such a motion filed after entry of final judgment is ineffective to raise any question (a point not made by the *524
plaintiff), the same questions are saved by the defendant's exception to the judgment, and so, they are before us for consideration. See Dent, Admr. v. Bellows Falls, Saxtons RiverSt. Ry. Co.,
As we have seen, the authority of Dirks to bind the defendant as her agent is limited by the scope of the facts stated, and only necessary inferences are to be indulged in support of the judgment. He had authority to build a barn upon the defendant's premises, and to procure the necessary material and labor therefor. So far as the plaintiff is concerned his powers extended no further than to purchase on the defendant's credit a ventilating system and to fix the price to be paid. The agreed facts are silent of any authority, express or implied, to bind the defendant for costs and attorney's fees. In this respect the facts do not support the judgment, and the exception is sustained.
The decisive question is whether on the agreed facts the plaintiff is precluded from recovery. The defendant maintains that the cause of action was entire, and that the judgment in the first suit is a bar to a recovery in this action. The plaintiff answers that the cause of action is divisible; that the items of costs and attorney's fees in the first suit could not be ascertained until the termination of that suit; and that they were not adjudicated because not recoverable in an action of book account.
It is an inflexible rule that all damages resulting from an entire and indivisible cause of action must be assessed in one proceeding, whether arising from contract or tort. A recovery for one part will bar a subsequent action for the whole, the residue, or another part. Morey v. King,
Applying the rule to the question before us, we think that the judgment in the first suit is an effective bar to a recovery in this action. The damages in both suits result from the same contract and from the same breach. The breach relied upon as a basis of recovery in both actions is the defendant's failure to pay for the ventilating system at the contract price when due. From a single breach arose two classes of damages: (1) Direct, consisting of the purchase price and freight, and (2) consequential, consisting of reasonable costs of collection and attorney's fees. Both classes of damages must be recovered, if at all, in one action; they cannot be split up and made the basis of separate suits. Morey v. King, supra; Maine Cent. R.R. Co. v.National Surety Co.,
The form of action pursued is immaterial. Koening v. Morrison,
44 Mo. App. 411; Warren v. Comings, 6 Cush. (Mass.) 103. Failure to choose an appropriate remedy to recover all the damages in the first action does not alter the rule. Morey v. King, supra;Hooker, Corser Mitchell Co. v. Hooker et al.,
In Sands v. Roller,
Judgment reversed, and judgment for the defendant to recoverher costs. *526