Kerr v. Simmons

Lewis, P. J., delivered the opinion of the court. The plaintiff sues upon a lease, executed by his assignor to the defendants, of certain premises in the city of St. Louis, for the'term of five years from the first day of January, 1874, at the yearly rent of $12,500, payable monthly. The lease contained the following covenants: “The said party of the second part, on his part, agrees to pay the rent herein reserved, and double rent for every day they, or any one else in their name, shall hold on to the said premises after the expiration of the term..hereby created, or its forfeiture for any cause whatever; to surrender the — 377 — premises to said lessor, his assigns or legal representatives, at the expiration of said term, in as good condition as they received the same, only excepting,” etc. The petition alleges that the defendants duly paid the rent during the term, but did not surrender the premises on its expiration ; that, on the contrary, the defendants held possession until February 28, 1879 ; that the plaintiff has sued them in another action for the rent of said premises for the month of January, and now prays judgment for double rent for the month of Februaiy. The amended answer denies generally, except as to the suit for January rent, and ^alleges that the plaintiff recovered therein against the defendants the sum of $2,126.63, and that the action was based upon the same alleged covenant which is here sued upon. No reply was filed. There was a verdict and judgment for the plaintiff. The question for our determination is whether the recovery in the first suit was a bar to the present action. Questions as to the extent to which a recovery upon part •of a claim, or series of claims, will operate to bar an action •upon the residue, have sometimes been very difficult of solution. In cases of tort the rule is very simple. Where there has been a recovery of damages on account of a trespass, no new action'can bo founded on the same wrongful act, even though additional damages may have arisen which* did not exist at the institution of the first suit. Hodsoll v. Stallebrass, 11 Ad. & E. 301; Fetter v. Beale, 1 Salk. 11. In actions founded on contract the test question generally is, whether the second suit is for a breach of the same or a different undertaking from that upon which the first suit was maintained. There may be in the same instrument •several separate promises or undertakings for as many distinct considerations. Thus, in a lease for one year, the rent to be paid monthly, there are twelve separate undertakings of payment, in effect — one for each month of the term. There are also as many separate considerations. — 378 — For, while the whole term may be regarded as a general consideration applying to all the payments, yet the occupancy for each month is the distinctive consideration for the payment attaching to that month. It results that the lessor may obtain a judgment for non-payment of the rent for June, but this will not prevent a subsequent recovery for a failure to pay the rent for July. The same rule applies, however, in man}' cases where the consideration remains the same for successive payments. A note payable in one year, with interest payable semi-annually, comprises two distinct contracts : one to pay the principal sum, and the other to pay the interest. Separate suits may be maintained on the two demands. Andover Savings Bank v. Adams, 1 Allen, 28. A second action of assumpsit may be maintained by a second indorser against the first indorser of a note, for moneys paid on account of the note, after a former action and recovery for moneys previously paid. Wright v. Butler, 6 Wend. 284. Here the liability arises upon an implied request by the first indorser, growing out of his legal liability to indemnify the second for any payment he may be required to make. But as no such request can be implied for the second indorser’s benefit until he has actually made a payment, it is obvious that for each payment there is a separate assumpsit. Hence the ‘second suit, although arising out of the same transaction, is not upon the same contract as the first. In Secor v. Sturgis, 16 N. Y. 548, the business of ship-carpenters was' carried on in one part of a building, under the direction of two of the parners in a firm, and the business of ship-chandlers in another part of the same building, under the direction of a third partner. Separate books of account were kept by different clerks in the two branches of business. The defendants contracted indebtedness in each department on account of tlie same brig. After a judgment obtained on one account, suit was instituted upon the other, against which the previous recovery was set — 379 — up as a bar. The defence was overruled, on the distinct ground that the two claims, although concurrent in point of time, were founded upon separate contracts or causes of action. These cases will serve to illustrate a universal test of the divisibility of rights of action, whether upon concurrent or successive grounds of complaint. An application of this test to the case of a contract which is single, determinate in itself, and therefore indivisible, will exemplify a different result; It is sometimes said that if the cause of complaint in a second suit might have been included in' the first, but was not, the second action will be barred by a judgment in the first. Bagot v. Williams, 3 Barn. & Cress. 235. But it does not follow that a second action may always be maintained when the cause of complaint could not be introduced into its predecessor. This fact, as. we have already seen, is verified in actions founded in tort. In actions of contract the bar will be complete whether the cause of complaint could or could not have been included in the first proceeding, if only the second be an attempt to enforce the same contract or undertaking. Thus, in Fish v. Folley, 6 Hill, 54, the defendant’s intestate had covenanted, in 1822, to furnish the plaintiff with sufficient water, under certain limitations and exceptions, to carry the plaintiff’s fulling-mill and carding-machine. In January, 1835, the plaintiff sued for a continuous breach of the covenant, dating from 1826, and got judgment. In 1840 he again sued on account of a continuous omission to supply water since 1835, claiming that this was a new breach, which could n’ot be included in the former suit. It was held that, the contract being entire and the same, a total breach put an end to it, and to allow a second recovery “would be splitting up an entire cause of action, in violation of established principles.” In Stuyvesant v. Mayor, 11 Paige, 414, the complainant had granted to the corporation of the city of New York certain lands for the purposes of a — 380 — public square, the city covenanting that such lands should forever be used and appropriated for the purposes of a public square exclusively, and that the corporation would immediately proceed to regulate the lands granted, and would enclose and improve the same in a specified manner. It was held that “the covenant to grade and enclose and improve the premises was not a continuing covenant, but a covenant which was to be performed within a reasonable time; and that a recovery in an action for the breach of that.covenant, brought after the expiration of a reasonable time to perform, the same, was a bar to any further recovery of damages for the breach thereof, and was also a bar to a suit in equity for the specific performance of such covenant.” It must here be observed that there is a clear distinction between a continuing covenant and a continuous breach, or several breaches, of a single and determinate covenant. In the first, an idea is involved of as many contracts as there are successive violations, since the continuing covenant only repeats itself for every successive period of which a breach may be predicated. It thus resembles somewhat an open account, in which, while each delivery creates an additional demand, a suit for the whole proceeds upon a single implied agreement that an account may be opened and continued either for a definite period or at the pleasure of one or both of the parties. Secor v. Sturgis, 16 N. Y. 558. The plaintiff must include all the items that have accrued up to the commencement of his suit. Yet he may afterwards sue for items that accrue subsequently, the second suit not being founded on the original agreement, but on an implied renewal or repetition of it. In the case of a single and determinate covenant, the judicial ascertainment of a breach puts an end to its vital and suable force as effectually as is done in the case of a recovery for an assault and battery. If such a covenant was the ground of action upon which the plaintiff in this case obtained his judgment for the Jan — 381 — uary double rent, then that judgment operated a complete bar against the present suit. A case which bears a striking analogy with the one before us is that of Stein v. Steamboat Prairie Rose, 17 Ohio St. 471. The contract was in these words: “I have this day hired barge Mary Jane, of Albert Stein, for the sum of ten dollars per day, until delivered back in Cincinnati, in like good order as received.” This was dated August 13, 1862. On January 1, 1863, Stein sued for the hire of the barge up to that date, and obtained judgment. On February 15, 1864, he sued for the barge-hire from January 2, 1863, to July 22, 1863, at which last date he repossessed himself of the barge. The court held that the contract was entire, and not divisible; that, as no time was specified for the return of the barge, it was to be returned within a reasonable time; that by suing in January, 1863, the plaintiff in effect averred that the reasonable time had expired, and the whole debt became due ; that he then exhausted his remedy on the entire contract, and the action thereon could not be sustained. If we could treat the defendant’s undertaking, in this case, to pay double rent per diem for occupancy after the expiration of the term as a continuation in modified form of the covenant for monthly payments during the term, there would be no difficulty in holding that successive suits might be maintained, if not daily, at least monthly, for every day’s occupancy on those terms. But this would be utterly inconsistent with the foundation of the present suit. There is here no continuing covenant for occupancy by the lessees in consideration of their periodical payments. On the contrary, the covenant is for a surrender of the premises. In this there is-nothing of which it can be said that there is a succession of undertakings mutually agreed, upon. The lessor does not agree to the continued occupancy, but stipulates against it. The occupancy is in itself a breach, and the specified per diem is simply an agreed measure of — 382 — damages. The covenant thus broken is single and entire. It relates to a single act, viz. : the redelivery of the premises by the lessees to the lessor. In one particular, the case here presented is stronger than the barge case above mentioned. There, the agreement fixed no time for a breach of covenant by failure to return the barge, and it became necessary to supply the omission by implication of a reasonable time. But here the time is distinctly fixed at the expiration of the term. When that occurred, the failure to surrender constituted a total breach. When the plaintiff sued and got judgment because of it, he exhausted his remedy as to that covenant. There was no continuing or renewed covenant upon which to sue for the subsequent per diem demands. There was nothing to sue for, unless for additional damages or additional breaches of the same undertaking; and this, as we have shown, is never to be permitted. The judgment is reversed and the cause remanded. The other judges concur.