Oliver v. Holt

11 Ala. 574 | Ala. | 1847

ORMOND, J.

The writ in this case was sued out on the 30th January, 1843, and the judgment rendered by the justice of the peace which is pleaded in bar, on the 8th February afterwards; it is therefore a just inference, that the action was commenced before the justice before this suit was instituted. It has been argued on that hypothesis, and we shall so consider it.

The facts as found by the jury, establish that there was a running account between these parties for services rendered by the plaintiff as a physician, and that the entire account was due when the action was commenced before the justice of the peace'. The question then presented by the record is, whether a suit, and recovery of judgment, for part of an account, is such an abandonment of the residue, that no action can afterwards be maintained for it. This is a different question from that which arises when a former recovery is relied on, because in a previous action between the same parties, the same matter was put in issue, and and was, or might have been passed upon by the jury.

The case of Seddon v. Tutop, 6 Term Rep. 607, is a leading authority upon this subject. There the plaintiff counted on a promissory note, and also for goods sold and delivered, and obtained a judgment. He afterwards brought suit for the goods sold, and the court held that the former recovery was prima facie evidence that the plaintiff’s entire demand had been submitted to the jury, but that he could show that it was not, and that in fact no evidence whatever was submitted to the jury upon the demand then sought to be enforced. Lord Kenyon distinguishes the case from one, where a party suing on a single demand, fails to make proof of a part, in which event the verdict would be a bar to another suit for the portion of the demand which the plaintiff failed to recover in the first suit. This principle has been frequently recognized in this court.

In this case, the jury have found, that the items composing the account recovered before the justice, are separate and distinct from the items of this account; it is clear, therefore, that this matter was not, and could not have been passed upon by the justice of the peace, and the only question is, whether a running account is such an entire thing, that it is not susceptible of division, and that therefore a recovery in a suit instituted for a part, will bar a suit for the residue. Such is our opinion. A continuous running account between the same parties, is an entire thing, not susceptible of division, the aggregate of all the items being the amount due. If this is not so, then each item of which the account is composed is a separate debt, for which the party may sue. An account may doubtless be composed of items independent of, and having no necessary connection with each other, as an entire continuous dealing, and in such a case, although if the items be of a similar nature, they may be combined in one action, the party may if he thinks proper bring separate actions on each, the only remedy for which would be an order to consolidate them.

In the King v. the Sheriff of Herefordshire, 1 B. & Ald. 672, separate actions were brought by a common carrier in the county court, for carrying goods at two several times, each of the actions being for £1 4s. A motion was made in the King’s Bench for a prohibition, upon the ground that but one suit could be maintained. The rule was refused, Lord Tenterden remarking, that they were distinct debts, and did not come within the rule of law prohibiting the splitting of actions.

This rule of law, that a demand not divisible in its nature, cannot be split up into several causes of action, has been recognized by this court in two cases, Lock v. Miller, 3 Stew. & P. 14, and De Sylva v. Henry, 3 Porter, 132. A consequence of this rule is, that a judgment in a suit for a part of the claim, is a bar to an action for the remainder. This results necessarily from the entirety of the contract; being incapable of division, so as to be the foundation of several suits, a recovery of a, part, is an election to take that for, and is therefore equivalent to, a recovery of the whole.

This principle has been asserted in a great many cases. Guernsey v. Carver, 8 Wend. 492, was an action for goods sold and delivered upon an account, consisting of distinct items, delivered on different days, but all due. It was held to be an entire demand, and that a recovery for a part was a bar to an action for the residue. The question again underwent an elaborate examination in the case of Bendernagle v. Cocks, 19 Wend. 207, where most of the adjudged cases are analyzed, and the principle sustained and re-asserted. The same doctrine is asserted in Bunnel v. Pinto, 2 Conn. 431, and in Lane v. Cook, 3 Day, 255. So in Ingraham v. Hale, 11 S. & R. 78, it was held that an entire demand could not be separated, by the assignment of a part to another, so as to authorize more than one suit upon it.

Modifications of the rule may be found in some cases, which seem to invade this principle; but the rule itself is,, we believe, universally recognized, and indeed the only ques- 1 tion would seem to be, whether a continuous running account, is an entire thing, or whether each item of which it is composed is a separate debt. That it is an entire thing, is expressly decided in many of the cases referred to, and on principle it would seem difficult to attain any other conclusion.

The facts found by the jury, bring this case fully within the principle. It is an action on a medical account which was due when the suit was commenced before the justice of the peace. Like a merchant’s account, it consists of a connected series of dealings between the parties, the aggregate sum at the close of the dealings, or when the account is closed, being the amount due. It can make no difference that the judgment was not rendered by the justice, until after this suit was commenced. Having been commenced before this suit, and being reduced to judgment, no other action can be maintained for the same demand.

Reversed and remanded.