Morey v. King, Fuller & Co.

51 Vt. 383 | Vt. | 1879

The opinion of the court was delivered by

Ross, J.

From the agreed case and the declaration it appears that the plaintiff seeks to recover $115.70 profits which he would have realized if he had been allowed to do the paving stipulated to be done in the contract set forth in the declaration, but which he was prevented from doing by the wrongful termination of the contract by the defendants. The breach of the contract from which the plaintiff’s right to recover these damages arises, is his not having been allowed to perform all the work covered by the contract, by reason of the wrongful termination of the same by the defendants. In the former suit between these parties, and which is relied upon as an estoppel in this suit, the plaintiff set up the same contract, and the same breach of it, now relied uponand recovered therein the same class of damages as profits which he seeks to recover in this suit. In that suit he gave evidence of, and the jury found, the very damages which he now seeks to recover, but his declaration was so framed that this court held that these damages could not be recovered in the former suit, as the parties’ rights had therein been determined by a preliminary judgment, which the plaintiff had obtained without trial, and which he insisted upon holding against the defendants. It is thus apparent that the damages sought to be recovered in this suit arise from not only the same contract but the same breach of that contract which was declared for and for a breach of which damages were recovered in the former suit between these parties; and that the only reason why the plaintiff did not recover these damages in that suit was, that he did not properly declare for them. Hence, the question presented is, whether a party who has failed to recover all the damages oceasionéd him by a single breach of a contract because he did not properly declare for a portion of them in the first suit, can be allowed to maintain a second suit for the recovery of that part of the damages not included in his recovery in the first suit. The general doctrine that a party cannot'divide up an entire claim into parts and maintain a separate suit for each part, whether the claim arises from contract or tort, is well established and elementary. Freeman Judgm. ss. 240, 241; Bigelow Estoppel, 127-133; Herman Estoppel, s. 77; Admr. of Whitney v. Clarendon, 18 Vt. 253; Secor v. Sturgess, 16 N. Y. 548. The doctrine is well stated in Herman on Estoppel, supra, thus: “ The principle is settled beyond dispute that a judgment concludes the right of parties in respect to the cause of action stated in the pleadings in which it is rendered, whether the suit embraces the whole, or only a part, of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire, claim, ensuing either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several quits be brought for the different parts of the same claim, . . _ . a judgment upon the merits in either will be available as a bar in the other suits. ... In 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.” As we have seen, the same contract and the identical breach of that contract for which recovery is sought to be had in this suit, was in issue and recovered on the former suit. Hence, that recovery is a bar to a recovery in the present suit.

None of the cases cited by the plaintiff’s counsel are in conflict with the elementary principle stated. They are all cases in which a recovery was had on a separate cause of action, which, in some instances, might have been included in the former suit, but which, either from mistake or some other cause, was not so included. None of them are cases in which a plaintiff has been allowed to divide and recover in separate suits parts of an entire claim arising from a single breach of a contract, or a single tort or cause of action.

The pro-forma judgment of the County Court is reversed, and judgment rendered on the agreed case for the defendants to recover their costs.