33 Pa. Super. 458 | Pa. Super. Ct. | 1907
Lead Opinion
Opinion by
The ostensible ground upon which the defendant based his points for charge, the refusal of which and the subsequent denial of his motion for judgment for the defendant, n. o. v., are complained of in the fourth, fifth and sixth assignments of error, is that the claim upon which the suit was founded was res judicata.
The facts upon which this claim is raised_are stated in the third point, which briefly summarizes them : ■“ That the lum
It thus appears that the original suit was against Edmund S. Parker alone.
At the trial the justice made the following entry: “ Plaintiff claims $292.37 as a balance on timber furnished for the erection of a new barn and other timber furnished for defendant.
“ And now, the 13th day of April, 1904, parties met, and, examining plaintiff and defendant and hearing their allegations, judgment for plaintiff for the sum of $19.50 publicly expressed and costs, there having been a dispute as to the $272.87 as to who should pay, Parker or the contractor, for building the barn.”
The present suit, as appears from the transcript of the justice, was by S. E. Pennebaker against Ed. S. Parker and J. J. Horning.
In 2 Bouvier, Rawle’s edition, 898, it is said : “ In order to make a matter res judicata, there must.be a concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action ; (4) identity of the quality in the persons for or against whom the claim is made.”
It seems to be conceded that the claim upon which this suit was founded was originally included in the claim made before the justice in the original suit against Edmund S. Parker, but in this case the parties are different, and, if it appears by competent evidence that the claim was excluded by the justice in the original hearing, it is clear that it was not adjudicated, and that the present suit is well founded. The entry made by the
In Coleman’s Appeal, 62 Pa. 252, it was held, as stated in the syllabus : “ Whenever a judgment in a former case is relied on as conclusive in another, it may be shown by evidence aliunde, not inconsistent with the record, that the particular point was not adjudicated, if in law judgment could have been rendered on any other.” See also Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22.
That extrinsic evidence is admissible to show what was adjudicated, see Hartman v. Pittsburg Incline Plane Co., 28 Pa. Superior Ct. 360.
We have, upon the record of the justice, the statement that there were two distinct items in the original claim : (1) “A balance on timber furnished for the erection of a new barn,” and (2) “ other timber furnished for defendant,” and, second, that as to the first there was ‘‘ a dispute as to the $272.87 as to who should pay, Parker or the contractor for building the
This testimony in explanation of the entry of the justice having been properly admitted, we can see nothing erroneous in the submission of the question by the court to the jury, as complained of in the third assignment of error.
The question of the withdrawal of the claim, upon which the present suit is based, was one of fact, which was fairly submitted by the court.
Upon a consideration of the whole case, we see nothing erroneous which calls for our interference.
Judgment affirmed.
Dissenting Opinion
Dissenting opinion by
I cannot agree with the opinion representing the majority of this court because I think it flatly in the teeth of the decisions of the Supreme Court on the question of a former recovery.
On April 6, 1904, the plaintiff sued the defendant before a justice of the peace, and on the return day of the summons the plaintiff claimed $292.37, a balance on lumber furnished for the erection of a new barn and other lumber furnished for defendant, and on the same date, after hearing, judgment was entered in favor of the plaintiff for $19.50. This judgment was not appealed from and it was paid by the defendant. The justice made his record show judgment for the plaintiff for the sum of $19.50 and costs, “ there having been a dispute as to the $272.87 as to who should pay, Parker or the contractor, for building the barn.” Then on May 24, 1904, the same plaintiff brought suit before the same justice against Edmund S. Parker and J. J. Horning, and on the trial of the said case, plaintiff appeared and claimed $272.87, being for lumber furnished to build a barn for defendant Parker and being the balance of the
The majority opinion states that the first suit was against Edmund S. Parker alone, and that the second, the present suit, was against Edmund S. Parker and J. J. Horning, and, therefore, the point is made that the parties are not identical in the two suits. This is a clear mistake. It is true that the second suit was brought against the. two, but when the case was called for trial in the common pleas Judge Atkinson, attorney for the plaintiff, stated: “ Although the action on the list is against Ed. S. Parker and J. J. Horning, yet we wish the jury to be sworn only against Ed. S. Parker.” And the jury was so sworn and the record shows this. Therefore, the two suits commenced before the justice were identical, “ (1) in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.”
At the trial in the common pleas the first judgment before the justice was pleaded and offered in evidence and the learned court was requested in defendant’s third point to instruct the jury, “that the lumber sued for in the present suit was the same lumber included in the suit brought by the plaintiff, S. E. Pennebaker, against Edmund S. Parker, commenced before H. F. Smith, the same justice, by summons dated April 6, 1904, and tried April 13, 1904, in which a judgment was rendered for the plaintiff for $19.50 and costs, which judgment was unappealed from and on which the plaintiff caused
The fifth assignment (fourth point) that under all the evidence the verdict must be for the defendant was also refused, and the sixth assignment is for refusing judgment non obstante veredicto.
The learned court below permitted the plaintiff to prove, by oral testimony, that while the lumber claimed for in the second suit was claimed for in the first, yet it was withdrawn from the consideration of the justice and he only entered judgment for the portion of the plaintiff’s claim which was not disputed, to wit: lumber for a nice house and pig pen. As I understand the settled law of Pennsylvania, the plaintiff having haled the defendant into the justice’s court and claimed on account for lumber sold and delivered, he was bound to present all of his open accounts against the defendant and it does not make a particle of difference whether or not he presented the claim for the $272.87 worth of lumber and then withdrew it, or that he did not present it all, because in either case the judgment of the justice was res adjudicata as to all claims of the plaintiff then due on account for goods sold and delivered, work and labor done and lumber sold and delivered. This because such accounts constituted his cause of action and he could not split it up and bring more than one suit therefor. It is perfectly clear from the plaintiff’s own testimony that when he brought the first suit his accounts against the defendant Parker for both lots of lumber were due and unpaid. The plaintiff’s testimony is clear and precise that his accounts for the lumber were against Edmund S. Parker alone and there is not a scintilla of evidence that he had any joint account against Parker and Horning. Therefore, it was a mistake to bring the second suit against them jointly and if the jury had been sworn as to Parker and Horning, and a verdict and judgment had gone against them jointly, on the evidence submitted, it would have been palpable error. In my opinion, when A has an account against B for dry goods sold and delivered and another account for work and labor done and another for lumber sold and de
In Buck v. Wilson et al., 113 Pa. 423, it was said by Mr. Justice Clark (p. 430) : “ A debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire; it cannot, without agreement to that effect, be split up into separate and distinct demands so as to form the basis of several suits ; if divisible into two parts, it-may, on the same principle, be divided into as many parts as it contains distinct items of charge, and no one would suppose that an action might be instituted on every item in a book account. . . . When the cause of action is the same, a former judgment, in a suit between the same parties, though an inadequate one, is a bar to a second recovery: Pinney v. Barnes, 17 Conn. 420; so, an action brought for a part of an entire and indivisible demand, and a recovery therein, will bar a subsequent suit for the residue of the same demand: Bendernagle v. Cocks, 19 Wend. 207.” And citing other authorities. See also Logan v. Caffrey, 30 Pa. 196, where it is said in the. syllabus: “ When labor is performed for another, at various times, under the same entire contract, and there is a recovery in one suit upon such contract, the party cannot maintain a second action, even on clear proof that no evidence was given in the first as to part of the demand in controversy. Nor will a formal withdrawal from the consideration of the jury of one of the items claimed in the first suit, and the entry of such withdrawal on record, enable the party to maintain a second action to recover the item so withdrawn.”
But in Hill v. Joy et al., 149 Pa. 243, will be found an elaborate opinion of Judge Mehard of district thirty-five, which, with the authorities therein cited, seems to me conclusive against the plaintiff in the present case. Judge Mehard’s decision was unqualifiedly affirmed by our Supreme Court as follows : “ This case has been so well discussed by the learned
In Pennock v. Kennedy, 153 Pa. 579, Mr. Justice Williams (p. 582) said: “The rule in relation to judgments entered upon verdicts is well settled. Such a judgment is conclusive not only on the items actually recovered for, but upon those for which the plaintiff might have recovered : Corbet v. Evans, 25 Pa. 310; Logan v. Caffrey, 30 Pa. 196; Alcott v. Hugus, 105 Pa. 350. The same rule is applied to matters of set-off. A defendant who fails to set off his cross demand against the plaintiff’s action is barred from'recovering it by an independent suit.”
Besecher v. Elory, 176 Pa. 23,. is cited by the appellee as authority for the proposition that the plaintiff could have withdrawn his claim, if he so desired. It is true that there is dicta in the opinion of Mr. Justice McCullom to that, effect, but that cannot be the law if the plaintiff’s claim was an entire cause of action as in the present case. If there is anything settled in Pennsylvania, it is that a plaintiff cannot split a cause of action, on which he could and ought to recover in one suit, and maintain two or more suits thereon. If in the present case, the plaintiff had discovered that his claim.for the lumber which he recovered for in the second suit was really a joint
The majority opinion cites Coleman’s App., 62 Pa. 252, but I do not think that ease touches the point in question. Mr. Justice Shakswood in delivering the opinion (p. 272) said: “ Whenever a judgment is relied on for this purpose, it is competent for the adverse party to show that the particular point was not adjudicated, if in law it could have been rendered upon any other.” But in the present case the plaintiff’s first suit was in assumpsit for lumber sold on account, and in law there could not be a judgment for the plaintiff except upon his cause of action which was not capable of being split into two causes of action.
Mutual Fire Ins. Co. v. Mardorf, 152 Pa. 22, is also cited, but in that case .the defendant set up as a defense a previous action in which a judgment had been rendered in his favor, and it was held competent for the plaintiff to show by parol evidence that the former action was to recover an assessment not included among the assessments for which the latter action was brought. It was plain in that case that the plaintiff was not offering evidence to contradict the record, but to show that what was really litigated in the former suit was' assessment No. 11, which was undoubtedly recognized as a distinct cause of action. While the issue in the second case was whether assessments No.’s 12, 13, 14 and 15, were right. That was not a case of an attempt to separate a cause of action and maintain two separate suits upon it.
Hartman v. Inclined Plane Co., 23 Pa. Superior Ct. 360, is also cited. That was an action of trepass in which the rule is not the same as in assumpsit. I think the law allows an action for each separate and distinct trespass, and if in a second suit for trespass a former recovery is pleaded, it may be proved
I would sustain the fourth, fifth and sixth assignments of error and reverse the judgment without a venire.