Carter-Crume Co. v. Peurrung

TAFT, Circuit Judge (after stating the facts as above). It is insisted on the part of the plaintiff in error that, at the time of the commencement of the first suit upon which recovery has been had, there was due upon the installments, under the contract, $1,500, which was not included in the recovery in that suit, and which is included in the recovery in this; that the plaintiff below was not entitled to split up his causes of action after the installments became due; that all the installments due were indivisible; and that the recovery for any of them was a bar to a recovery of all the others due at the commencement of the suit. The premise for this argument is unfounded. It is that the former suit was begun when the amended petition was filed in April, 1897. It is conceded that the original petition in the former suit asked judgment for all the installments then due; but it is argued that a new suit was begun by the filing of the amended petition, and that in the amended petition all the installments which have fallen due in the meantime should have been included. We cannot yield to this proposition. It may be that, upon leave of court, the plaintiff, by supplemental petition, might have included in the former suit all the installments which had fallen due after the filing of the original petition, but he was under no obligation to do so. In his amended petition, he stated exactly the same cause of action which had been stated in the original petition, merely elaborating somewhat the averments relating to jurisdiction and dismissing one of the parties defendant. As the petition was án amended petition, and not a supplemental petition, it related back to the time of the filing of the original petition, and cannot be construed to be the beginning of a new suit as of the date of its filing. In Railroad Co. v. McLaughlin, 43 U. S. App. 181, 19 C. C. A. 551, 73 Fed. 519, it was held by this court that an amended petition in every respect like the original petition, except as to the jurisdictional averments, was to be regarded as filed and construed as 'of the date of the original petition; and two decisions in the court of appeals in the Eighth circuit were cited to sustain this view. Carnegie v. Hulbert, 36 U. S. App. S1, 16 C. C. A. 498, 70 Fed. 209; Bowden v. Burnham, 19 U. S. App. 448, 452, 8 C. C. A. 248, 59 Fed. 752. We are clearly of opinion, therefore, that the former suit must be regarded as having been begun at the date of the filing of the originál petition. This brings us to the second contention of plaintiff in error and its more radical claim. It is insisted that upon the refusal of the [891] Carter-Crume Company, in September, 1895, further to pay the installments due under the contract, the only remedy which the plaintiff or his assignors had was to sue upon the contract as an indivisible one for damages for its entire breach; that the suit begun in September, 1896, must be regarded, therefore, as a suit of that character; that the recovery must be treated as the amount due for the total breach, and the judgment must be a bar to a further recovery upon the contract. The contention cannot be sustained. The cases which the plaintiff in error relies upon are cases involving contracts entirely different from the one at bar. They are James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, and Steinau v. Gas Co., 48 Ohio St. 324, 27 N. E. 545. James v. Allen Co. was a case of a contract for services. The employé was dismissed before the termination of the contract. At the end of two months after his dismissal, he brought suit to recover the amount which would have been due him under the contract, had he continued at work, and recovered a judgment therefor. At the end of two more months he brought a second suit, and in the second the judgment in the first suit was pleaded as a bar. The plea was sustained. It was held that the only remedy of the plaintiff had been to bring a suit to recover damages for the entire breach; that as he had not rendered the services under the contract, even though prevented from doing so by the defendant, he could not properly aver that he had rendered the services, and he could not treat the contract as still subsisting. The same rule was laid down in the case of Steinau v. Gas Co., supra, where the contract was one in which Steinau agreed to take gas from the gas company for 10 years, and the gas company agreed to furnish the gas. Several years before the termination of the contract Steinau refused to take the gas, and the gas company did not furnish it, but brought suit to enjoin his use of any other means of lighting. The supreme court denied the relief prayed, on the ground that the gas company had a full and adequate remedy at law in bringing a suit for the breach of the contract, in which the gas company might recover as for an entire breach. The court said that the case was quite like that in principle of James v. Allen Co. Without discussing the correctness of these decisions, it is sufficient to say that they have no bearing upon the present case. Here, all that the other contracting parties were required to do was of a negative character. They have performed all that they agreed to perform under the contract. The defendant has received all the benefit from the contract which it was agreed it should receive. It is possible that the plaintiff’s assignors might have treated the defendant’s repudiation of the contract in September, 1895, as an anticipatory breach, and have sued for the entire damages, though we do not so decide; but, if it be so, it was at their option thus to treat it or not, and they did not see fit to do so, but continued to comply with' their contract, and, by doing nothing in violation thereof, furnished to the defendant all the consideration it' would have received had it continued to comply with the contract on its behalf. As the contract was not, therefore, put an end to by acceptance of the anticipatory breach, it remained in force, and the [892] plaintiff was entitled to recover in suits which should include all the installments due up to the time of the suit brought. The court below was right in denying the motion for a judgment made by the defendant. The defendant in error concedes that there was an error in the judgment below to the extent of $250, and consents to the remittitur of that amount in this judgment. Such remittitur, with interest, will be entered and included in the mandate, and, as entered, the judgment will be affirmed, at the costs of the plaintiff in error.