Indianapolis, B.&W. Ry. Co. v. Koons

• Decision Date: 04 March 1886
• Citation: 5 N.E. 549,105 Ind. 507
• Court: Indiana Supreme Court
• Parties: Indianapolis, B. & W. Ry. Co. v. Koons.

105 Ind. 507

5 N.E. 549

Indianapolis, B. & W. Ry. Co.

v.Koons.

Supreme Court of Indiana.

Filed March 4, 1886.

Appeal from Henry circuit court.

C. W. Fairbanks, for appellant.

Hemley & Brown, for appellee.

Mitchell, J.

On the thirty-first day of January, 1882, the Indianapolis, Bloomington & Western Railway Company and Davault Koons entered into a written contract, in which it was recited that, in consideration that Koons had conveyed to the railway company a right of way over certain lands owned by him, the latter agreed to maintain fences along the right of way so conveyed, and to construct and maintain a good and sufficient crossing over its road, with cattle-guards on each side. This suit was brought upon the contract. It was assigned, as a breach thereof, that the railway company failed to erect the fences according to the agreement, whereby the plaintiff sustained damages. It is alleged that the reasonable cost for the erection of the fences will be $800, and that the plaintiff has sustained special damages by reason of the failure of the defendant, in that he has been for two years prevented from using his tillable and pasture lands lying adjacent to the unfenced right of way. The defense is predicated upon a former adjudication, whereby it is claimed the plaintiff's right of recovery on the contract is merged in a prior judgment. The answers alleged, in substance, that on the twelfth day of October, 1883, in the Henry circuit court, the plaintiff impleaded the defendant in a certain action on the same written agreement and cause of action, to which the defendant appeared, and that, by the consideration and judgment of the court on issues joined on a complaint on the same identical contract, the plaintiff recovered a judgment of $40, which remains in full force, etc. To these answers it was replied, in substance, that in the former action the breach in the contract sued on, relating to the failure of the defendant to erect the fences, was withdrawn from and stricken out of the complaint before the jury retired, and that the finding and judgment in that case related solely to the breach of the contract in failing to construct the crossings and cattle-guards stipulated for in the agreement. A demurrer was overruled to this reply. Upon trial to a jury, a verdict was returned for the plaintiff. Over a motion for a new trial, judgment was rendered on the verdict. At the trial the defendant, in support of its special answers, offered in evidence the pleadings, record entries, and judgment in the former suit. Upon objection, this evidence was rejected as immaterial and irrelevant. The following entry appeared on the record of the prior suit, as it was offered in evidence: “Thereupon said plaintiff withdraws from the consideration of the jury and dismisses all claim for damages, except for the breach of contract in failing to make crossing.”

The question for determination is, was the judgment rendered in the prior action a bar notwithstanding the dismissal of so much of the complaint as related to the claim for damages for the failure to build fences? It was alleged in the complaint in the first action that the railway company had built its railroad over the right of way conveyed to it by the plaintiff, and that it had been running its cars since the first day of February, 1882. The railway company having, upon a consideration received by it, contracted to build fences, and having taken possession of the land, it became its duty, within a reasonable time, to comply with its contract. The duty to build the fences, and to construct the crossing and cattle-guards, arose out of the same contract. The obligation of the railroad company was to discharge both stipulations within a reasonable time. Failing to comply with its contract within a reasonable time, the plaintiff was entitled to maintain an action for a breach of the contract, and to recover as damages the reasonable cost of erecting the fences and constructing the crossing. It was not necessary that he should have first done the work which it was the duty of the railway company to do, before he could maintain the action. Logansport, etc., Ry. Co. v. Wray, 52 Ind. 578;Lawton v. Fitchbury R. Co., 8 Cush. 230. Having a right to recover for the failure to construct the crossing, the plaintiff had at the same time the right to recover on the same contract for the failure to build the fences. This being so, it was not competent for him, after recovering part of the damages accrued in one suit, to maintain another suit on the same contract, to recover other damages which had accrued when the first judgment was rendered. A party will not be permitted to present, by piecemeal, in successive suits, claims which grow out of an indivisible, entire contract, and which might have been litigated and determined when the first suit was brought. In such a case the judgment by the first suit will be a conclusive merger of all the plaintiff's rights under the contract.

The rule is well stated in the following language:

“Where the action is upon a contract, it merges all amounts due under or arising out of the contract prior to the bringing of the suit. They constitute a single indivisible demand. The plaintiff cannot be allowed to split up the various covenants or promises contained in one contract, and recover upon each separately.” Freem. Judgm. §§ 240, 272.

In Henderson v. Henderson, 3 Hare, c. 115, the rule was stated as follows:

“Where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because the party...