Alkire Grocer Co. v. Tagart

Smith, P. J. The plaintiff corporation, a wholesale grocer, through its traveling salesman, sold and delivered to the defendant, a retail merchant, seven several bills of merchandise. Two of these bills, one amounting to $76.88, and the other to $97.08, were of the date of September 12, 1890. The other five were of dates prior to these two. Each and every one of them were sent- to the defendant in advance of the receipt of the merchandise by him. On their face they showed the terms and conditions of the sales. In some instances they were on sixty and in others on thirty days time with two per cent, off, if paid within ten days, after the sale, if not paid when so due, then the amount of each bill was to bear ten per cent, interest therefrom till paid. On December 10, 1890, the defendañt had not paid for the said bills of merchandise, although they were all past due. Defendant had, a few days previous to the date of the last two bills, made a small remittance without indicating on which the same should be applied as a credit. The aggregate amount of all these several bills was in excess of the jurisdiction of a justice of the peace, but omitting that of September 12, 1890, for $76.88 therefrom and it was within it. The plaintiff brought one suit before a justice for the six bills, amounting to $230.74, and another on tbe omitted one of $76.88. Both suits were subsequently removed by appeal into the circuit court where there were trials. [392] In that for the larger amount the defendant had judgment and in that for the smaller, which is the present one, plaintiff had judgment from which defendant has appealed. The judgment for the defendant in the suit on the six bills having been obtained before the trial of this suit, the defendant interposed the defense that the judgment in the former was a bar to the latter. The trial court, by its instructions, refused to recognize this as a valid defense. Each bill was clear and specific, as has already been seen, in setting forth a contract, the parties thereto, its subject-matter, the property sold, the price and manner of payment as well as the terms of sale. And when .delivered and accepted was in effect a bill of sale sufficient within the statute of frauds, to pass the title of the merchandise therein described to the defendant. Davis v. Bradley, 24 Vt. 55; James v. Patton, 8 Barb. 344. It is now well settled that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings, whether it includes the whole or only part of the demand sued on, upon the ground that an entire claim arising either upon contract or wrong can not be split up into several actions. When the demands arise out of separate and distinct causes of action the rule is otherwise. And even where several claims, payable at different times, arise out of the same contract or transaction, separate actions may be brought as each 'liability accrues; but in this case it has been held that if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due, a recovery in that suit will be a bar to a second action brought to recover the other claims that were due when the first was brought. Union R. & T. Co. v. Traube, [393] 59 Mo. 355; Brown v. King, 10 Mo. 56; Wagner v. Jacoby, 26 Mo. 532; Flaherty v. Taylor, 35 Mo. 451. 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. As is said in Luce v. Sturges, 16 N. Y. 548: “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 nupaerous the items of wrong or damage may be. The case of a contract containing several stipulations to be performed at different times is no exception, although the action may be maintained on each stipulation as it is broken before the time for performance of the others, the ground of action is the stiprdation which is in the nature of a several contract.” When there is an account for goods sold, or labor performed, 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 contract, whether one only or separate rights of action exists, will, in each case, depend upon whether the case is covered by one or separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or perform work, or advance money; and usually in the case of a running account it may be fairly implied that in pursuance of an agreement an account may be opened and continued either for a definite period or at the pleasure of both the parties. But there-must be either an express contract, or the circimistances must be such as to raise an implied contract [394] embracing all the items to make them, when they arise at different times, a single or entire demand or cause of action. It is true, as already indicated, that on September 12, 1890, the plaintiff sold defendant two bills of merchandise, one of which is the foundation of this action, and the other is one of the six in the action in which defendant prevailed. These two sales, though on the same day, were separate an'd distinct transactions, as appears by the bills of sale evidencing the same. One of them was on thirty and the other on sixty days’ time, each to bear interest from the date when due and payable. These bills are to be distinguished from a running .indivisible account which is' due on demand and where interest begins only after demand. R. S., sec. 5872. In case of a running account the statute of limitation begins to run only from the last item therein, while here the interest and the statute of limitations both begin to run from the maturity of each bill. In Beck v. Devereaux, 9 Neb. 109, where by agreement bills were to be made out at the end of every month, it was ruled, that, while an entire account for two months might have been included in one action the plaintiff was under no obligation to do so. The amount of the sales for each month was an independent demand and would draw interest from the time it fell due. The account for each month was a separate and distinct cause of action and that a recovery on the account for the first of the two months would not bar an action on that for the' second. The several bills here do not sustain the connection to each other that ordinarily obtains between the items of an account for goods furnished by a tradesman to his customer. Harrison v. Hall, 48 Pa. St. 24. Nor is this a case of a running account where it was specially agreed or impliedly understood between [395] the parties that it should be kept open and continued as one and the same transaction. The undisputed fact appearing that each sale was made on a definite time after the expiration of which if not paid the amount of the same was to bear a specified rate of interest from maturity clearly repels the presumption that there was an agreement that all of these separate bills should constitute a single transaction. Thompson v. Brown, 50 Mo. App. 314. There was not the semblance of proof of any such express agreement nor of facts from which the law would imply its existence. It does not necessarily follow, as defendant seems to suppose, that because the sale evidenced by the bill sued on was one of two made on September 12, that therefore the two were but one transaction. It may be that, in the absence of evidence to the contrary, such would be the presumption, but not so here where the sale bills conclusively show that each sale,, though made on the'same day, was an independent and distinct transaction. Applying these tests, it seems clear enough to us that the plaintiff’s said several bills did not constitute an entire claim. In a court of competent jurisdiction we have no doubt that each bill could have been declared upon in a separate count in a single action, but the law did not require the suit to be brought in that way. Plaintiff had a right to unite in one suit before a justice as many of these accounts as it saw proper provided in doing so they did not exceed the jurisdiction of the justice, and a judgment in an action 'so brought would not bar another action on the others not included. ¥e discover no merit in the defendant’s other contentions. Finding no fault with the action of the trial court, we must, of course, affirm-the judgment, Ellison, J., concurs. Gtill, Jdissents.