Bickford v. Cooper & Co.

• Decision Date: 01 January 1860
• Citation: 41 Pa. 142
• Parties: Bickford versus Cooper & Co.
• Court: Pennsylvania Supreme Court

Page 142

41 Pa. 142

Bickford versus Cooper & Co.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Cambria county.

COPYRIGHT MATERIAL OMITTED

R. L. Johnson, for plaintiff in error, admitted that the staves delivered under the contract, and which were included in the former action, would be a defence pro tanto to plaintiff's case,

but denied that his remedy was entirely cut up, or that he could be turned out of court by it, as had been done.

The action was a special one for damages for the non-performance of a contract not under seal, which accrued only three days before it was brought. The defence was not by showing performance, nor waiver of performance, nor payment, but by showing a former recovery on a declaration for goods sold and delivered. Citing Hess v. Heeble, 6 S. & R. 57; Sterner v. Gower, 3 W. & S. 143; Wilson v. Wilson, 9 S. & R. 429; Kane v. Fisher, 2 Watts 253; Hibsham v. Dulleban, 4 Id. 191; Morrison v. Becky, 6 Id. 349; Carmony v. Hoober, 5 Barr 305; Lentz v. Wallace, 5 Harris 414; Hamer v. Beaver, 7 Casey 60; Merch. Ins. Co. v. Algeo & Co., 7 Id. 448; Killion v. Wright, 10 Id. 91; Steelman v. Sites, 11 Id. 216; Finly v. Hanbest, 6 Id. 190; Logan v. Caffrey, 6 Id. 196; Buffington v. Cushman, 4 P. L. Jour.

A. Kopelin and William Kittell.—When the suits were brought, the records of which were received in the court below as evidence in this action, the timber suitable for staves on the Lloyd land had been exhausted, and having recovered by the thousand for these and those furnished from the Pringle tract, the plaintiff in error seeks in this suit $2000 as an entirety. The plea of former recovery was therefore proper, and the evidence received was proper in support of it: Ingraham v. Hall, 11 S. & R. 76; Hess v. Heeble, 6 Id. 57; Logan v. Caffrey, 6 Casey 196; Carvill v. Garrigues, 5 Barr 152; Brockney v. Kenrig, 2 Johnson 210; Miller v. Maurice, 6 Hill 122; Wilson v. Hamilton, 9 S. & R. 429.

Although the suits offered in evidence were commenced before September 1st 1857, the time limited with Pringle for the completion of his contract, they were not tried until May 25th 1858, since which time no staves were cut, and plaintiff cannot now say that his claims then made should have been rejected by the court.

The opinion of the court was delivered by WOODWARD, J.

If the two former suits were for the same cause of action as the present, there was no error in admitting the records of those suits, and in holding the plaintiff concluded thereby.

What was the cause of action in those cases?

We learn from the charge of the court that the suits were brought to recover the value of staves, made under the same agreements that are in evidence in this case. They were actions of indebitatus assumpsit, and the legal defence taken was that the suits should have been upon the special contract. The court replied that if the contract had been fully executed on the part of the plaintiff, he might sue in the form adopted, for the price of the staves. The plaintiff accordingly recovered for all the staves taken from the Lloyd lands, some 84,000, and for about 23,000 taken from the land of John R. Crum. About 1000 staves had been delivered after the institution of the last of the former suits, but it was agreed to include these in the verdict, and they were recovered for like the rest. The verdicts in the two cases amounted together to $1790.51 — a sum which would seem to have been the plaintiff's full compensation for all the staves actually sold and delivered to the defendants, under the agreement of 8th May 1856. The agreement was apparently extinguished by the verdicts.

Yet the present action is founded on the same agreement. Assuredly the plaintiff does not expect to recover again for the staves delivered under that paper....