Deal v. Self

• Decision Date: 28 February 1884
• Citation: 90 N.C. 478
• Parties: JARRETT & DEAL v. W. R. SELF.
• Court: North Carolina Supreme Court

90 N.C. 478

JARRETT & DEAL

v.W. R. SELF.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Fall Term, 1883, of CATAWBA Superior Court, before Graves, J.

The plaintiffs appealed.

Mr. M. L. McCorkle, for plaintiffs .

No counsel for defendant.

SMITH, C. J.

The defendant about to erect a house entered into an agreement with the plaintiffs, who are house carpenters, by which the latter agreed to construct window-frames, shutters, doors and other articles used in the building, and to do other specified work thereon at prices fixed for each, and to be paid for as they were respectively completed. When the contract had been performed there was found to be due the plaintiffs the sum of $241.14, and thereupon the plaintiffs, on December 13, 1882, filed an itemized statement of their account in the office of the superior court clerk, in order to perfect and secure the laborer's lien on the house, in pursuance of the directions of the statute. THE CODE, § 1784.

In order to a more speedy collection of the claim and enforcement of the lien, the plaintiffs separated the charges, which constituted the claim, into two accounts, one embracing items to the amount of $166.33 and the other items to the amount of the residue of the entire claim, and on January 17, 1883, commenced actions before a justice of the peace for the recovery of each as a distinct and independent demand, and on the trial recovered judgment in both actions, from which the defendant appealed.

In the superior court the actions were consolidated without prejudice to the question of jurisdiction, and tried.

The court being of opinion that, inasmuch as after completing the contract the plaintiffs had filed the whole account in the mode prescribed for claims beyond a justice's jurisdiction, they had elected to treat it as one debt, and it was now severable without the defendant's assent, so as to bring the parts within that jurisdiction, the action was accordingly dismissed, and from this judgment the plaintiffs appeal.

The cases heretofore decided in this court and cited in the argument for appellants, Caldwell v. Beatty, 69 N. C., 365; Boyle v. Robbins, 71 N. C., 130, and the later case not referred to, Magruder v. Randolph, 77 N. C., 79, establish the general proposition that a series of separate charges, for goods sold and delivered or labor performed, each the subject of a distinct contract, though associated and put in one account, may be divided and severally sued for in the proper jurisdiction for each, or they may be united so as to form an aggregate single indebtedness belonging to a different jurisdiction. This follows from the fact that there is a succession of contracts applicable to a succession of items in the series which make up the amount as a whole. If, however, several articles are bought at one time, so as to constitute a single understood transaction and be embraced in one contract, notwithstanding each has its own fixed price, they are not separable so as to admit of separate actions.

In the case last mentioned, the defendant went through the rooms of the plaintiff's store in search of the various goods he wished to purchase, selecting and setting aside such as he wanted, with the prices made known at the time, until his bill exceeded the sum of five hundred dollars. His account was so made out and rendered with a statement of the credit allowed upon the bill. The court held that there was a single contract to pay for all the goods one sum of money, and there could be no division so as to change the jurisdiction. “Here, the dealing was continuous,” in the words of the opinion, “and nothing appears on the face of it, or in the account rendered, indicating that either party intended that each item should constitute a separate transaction and cause of action, which could have been easily done and we are to presume would have been done, if so intended.”

Again, it is plain from adjudications and upon principle that if the contract be to sell and deliver different parcels of goods, at different stated periods, each parcel to be paid for on delivery, or to pay money in future installments, the action will lie upon each failure to make payment, for each is a distinct breach of the contract, and so toties quoties, for the successive breaches. A case of frequent occurrence is that of a bond or note to pay a principal sum of money at a distant future period, and meanwhile to pay the semi-annual interest as it accrues. The interest is recoverable from time to time as it may become due, and one recovery is no obstruction to the recovery of interest subsequently recurring. But it is quite a different proposition to say that when all the breaches have occurred of which the contract is susceptible there can be separate suits brought for each. All that can be, must be included in one action.

The rule is thus stated by an eminent writer on the law of contracts: “If there are many parts of the contract and some have been broken, and others not yet, as if money was to be paid on the first day of every month for two years, and one year has expired and nothing been paid, the creditor may bring his action for one or more of all the sums...