28 Kan. 798 | Kan. | 1882
This was an action in the district court of Leavenworth county, brought by plaintiff in error (plaintiff below), to recover on an account for work and labor. The case was tried before a jury, but after the testimony had been all received the court instructed them to-return a verdict for the defendant. The parties were each a witness in his own behalf, and testified directly against each other, so that there was presented a disputed question of fact; and this, counsel for plaintiff in error insists, should have been submitted to the jury, and that the court erred in taking it from them. Of course if the case turned on the decision of this question of fact, then counsel is right; for under our system of jurisprudence the jury are the triers of fact, and their decision upon a doubtful and disputed question is final and conclusive. To sustain the ruling of the district court, it must clearly appear that though the facts be as plaintiff claims, still the law compels a decision against him. This then is the real question presented: Conceding the facts to be just as plaintiff says they were, was defendant entitled to a verdict and judgment? Now the facts are these: The defendant made a contract with one Liddell to do some work on his house. The latter made a sub-contract with plaintiff to do the painting. After plaintiff had about half finished his contract he became fearful that he was not going to get his pay, and declined to go ahead with the work. Thereupon defendant agreed to become responsible, and to pay plaintiff for the work if he would finish the painting. He did so, and then insisted that defendant should pay. The defendant denied any such promise. But whether he made it or not, we shall' not stop to inquire, nor whether it was, if made, simply a promise to pay the debt of another as defendant claims, and therefore not binding because not in writing; for we think another matter compels an affirmance of the ruling of the district court. That matter is this: The plaintiff, after the house was completed, brought one action against the defendant for part of this work,
It is often difficult to determine whether separate items of a claim constitute a single, or separate cause of action. The rule is clear, but the application is often difficult. There was a disposition at one'time in the courts to extend the scope of this rule, and to hold thatlfthere was but one cause of action as to many items of claim which in fact sprang out of different and independent contracts. The cases of Guernsey v. Carver, 8 Wend. 492, and Colvin v. Corwin, 15 Wend. 557, illustrate this tendency. But the later authorities apply it more correctly. In the case of Secor v. Sturgis, 16 N. Y. 558, the court thus interprets the rule:
. “The true distinction between demands or rights of action which are single and entire and those which are several and •distinct, is, that the former immediately arise out of one and the same act or contract, and the latter-out of different acts or contracts. Perhaps as simple and safe a test as the subject admits of by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the' items of wrong or damage may be. In respect, to contracts, express or implied, each contract affords one, and only one, cause of action. The •case of a contract containing several stipulations to be performed at different times is no exception, although an action may be maintained upon each stipulation, as it is broken, before the time for the performance of the others. The ground of action is the stipulation, which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, or where money has been lent to or paid for the use of a party at different times, or several items of claim spring in any way from a contract, whether one only or separate rights of action exist, will in each ease •depend upon whether the case is covered by any one or separate contracts.”
“I had done part of the work on the house, and Carr? the-architect of the improvement, wanted me to go on and paint the window-blinds, and I told him I would not do any more work till I knew who- was going to pay. The defendant Smith told me to go on and paint the blinds and he would pay me. I went on and painted the window-blinds, and completed the other work. The whole amount was $840,. besides the> window-blinds. About half of the work had been done when I had this talk with Mr. Smith.”
No testimony indicates any other conversation, any other-contract or promise on the part of defendant. In his first action, plaintiff sued for the blinds, of which he speaks in his testimony above quoted, things which he calls extra work, and then in this action for the balance which would be due-under his contract with Liddell, and also a few extra matters.. Now counsel for plaintiff says that a party may in one conversation enter into several independent contracts. He may make one promise, which, referring to distinct matters or embodying distinct stipulations, really creates so many independent contracts. He may give a note, which, containing a promise to pay the principal at its maturity, and interest at a given rate at certain intervening times, thereby creates as many separate contracts, which may be enforced by separate actions, as there are times in which interest becomes due. So-in this case there was the regular contract work and the extra work; the defendant promised to pay each amount. Therefore there were two contracts — one to pay the amount which Liddell would have owed under the original contract, and one to pay for the extra work thereafter ordered. We do not think this argument sound. It is true that extra work some
We have not considered the case in the light of the othey question presented and discussed by counsel, and we have