Dutton v. Shaw

Decision Date16 January 1877
Citation35 Mich. 431
CourtMichigan Supreme Court
PartiesEdward H. Dutton v. Humphrey Shaw

Submitted on Briefs January 4, 1877

Error to Saginaw Circuit.

Judgment reversed, with costs, and a new trial granted.

Flanders & Wilber, for plaintiff in error.

The authorities are all agreed that where the demand is entire and indivisible, a recovery for a part bars a suit for the whole: Town v. Smith, 14 Mich. 348; Mendville v Welch, 5 Wheat. 286; Chicago, etc., R. R. Co. v Nichols, 57 Ill. 464; Willard v. Sperry, 16 Johns. R., 121; Sweeney v. Dougherty, 23 Iowa 291; Flaherty v. Taylor, 35 Mo. 441; Brown v. Fisher, 10 Id. 532; Morgan v. Jacoby, 26 Id. 27; Warren v. Comings, 6 Cush. 103; Walter v. Richardson, 11 Rich. (S. C.), 466; Smith v. Jones, 15 Johns. R. 229.

Where the claims, although all due, arise out of separate and distinct transactions, the authorities sanction independent suits, subject, however, to be consolidated by order of the court.

But where the claims grow out of the same contract, and are all due, they are regarded, by the great weight of authority both in England and the United States, as constituting but one entire demand or cause of action, and if a suit is brought to recover a part of such demand, and subsequently a second suit for the residue, the first action may be pleaded in abatement or bar of the second: Girling v. Alders, 2 Neb. 617; Bagot v. Williams, 3 Barn. & Cress., 235; Bunnell v. Pinto, 2 Conn. 431; Avery v. Fitch, 4 Id. 362; Penney et al v. Barnes, 17 Id. 419; Miller v. Covert, 1 Wend. 487; Guernsey v. Carver, 8 Id. 492; Stevens v. Lockwood, 13 Id. 646; Bendernagle v. Cocks, 19 Id. 206; Secor v. Sturgis, 16 N. Y., 548; Camp v. Morgan, 21 Ill. 255; Cassylberry v. Forquer, 27 Id. 170; Lucas v. Lacompte, 42 Id. 303; Borngesser v. Harrison, 12 Wis. 606; Sweeney v. Dougherty, supra.

The doctrine of these latter cases seems, upon principle, to be entirely just. It is based upon the maxim, Nemo debet bis vexari pro una et eadem causa. It has always been regarded as a matter of concern to the state, that litigation should have an end, that the individual should not be unnecessarily harassed with a multiplicity of suits: Marsh v. Pier, 4 Rawle 288-9.

Gaylord & Hanchett, for defendant in error.

The sole question in the case is the right of defendant in error to recover for two thousand five hundred and forty-six staves sold and delivered to plaintiff in 1863, under a contract made early in that year, whereby said plaintiff in error was to take all the staves that might be delivered at specified places during that season by defendant in error, to take them at a stipulated price per thousand, payable upon delivery of each lot, which item of two thousand five hundred and forty-six staves was withdrawn from the consideration of the jury in a former action brought by defendant in 1864, for staves delivered under that contract at other times, and not passed upon by them.

The contract under which such staves were delivered was clearly a severable contract. Neither the consideration was entire nor the subject matter. It was not the sale of an undetermined quantity of staves for a gross sum, nor the sale of a definite quantity for a gross sum or at so much per thousand, but under it the defendant could deliver as many or as few staves as he pleased, and upon the delivery of every lot of staves was entitled to his pay for that lot, and could have brought an action at once therefor: 2 Par. on Cont., (3 Ed.) p. 30 et seq.; Dibol & Plank v. Minott, et al. 9 Iowa 403; Badger v. Titcomb, 15 Pick. 409; Perkins v. Hart, 11 Wheat. 237.

This contract is not governed by the law governing entireties.

The lot of staves in question constitute a distinct cause of action, and not having been adjudicated upon in the former suit, is not barred by that suit.

This is distinctly decided in the following cases: Badger v. Titcomb, 15 Pick. 409; Sparhawk v. Wills, 6 Gray 163; Andover Savings Bank v. Adams, 1 Allen 28; Atkinson v. Atkinson, 8 Allen 15; Byrket v. State, 3 Ind. 248; Corby v. Taylor, 35 Mo. 447.


Campbell, J.

In this case Shaw had sold and delivered to Dutton several lots of staves, all at a price fixed by a contract, whereby Shaw was to deliver and Dutton to accept all the staves to...

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26 cases
  • Schmidt v. Johnstone
    • United States
    • North Dakota Supreme Court
    • 13 May 1915
    ... ... Paul & N. P. R. Co. 39 Minn. 451, 1 ... Am. St. Rep. 673, 40 N.W. 520; 1 Van Fleet, Former ... Adjudication, §§ 59, 70, 144, and 156; Dutton ... v. Shaw, 35 Mich. 431; 23 Cyc. 1174, note 85; ... Continental Ins. Co. v. H. M. Loud & Sons Lumber Co ... 93 Mich. 139, 32 Am. St. Rep ... ...
  • People v. Noth
    • United States
    • Court of Appeal of Michigan — District of US
    • 26 April 1971
    ...79; Thisler v. Miller (1894), 53 Kan. 515, 36 P. 1060.11 Kruce v. Lakeside Biscuit Co. (1917), 198 Mich. 736, 165 N.W. 609; Dutton v. Shaw (1877), 35 Mich. 431.12 Bocinski v. Krzeminiski (1931), 253 Mich. 48, 234 N.W. 103; Swindlehurst v. American Fidelity Fire Insurance Company (1966), 2 M......
  • Rogers v. Colonial Federal Sav. & Loan Ass'n of Grosse Pointe Woods
    • United States
    • Michigan Supreme Court
    • 8 February 1979
    ...claims or demands and bringing several actions thereon. Tuttle v. Everhot Heater Co., 264 Mich. 60, 249 N.W. 467 (1933); Dutton v. Shaw, 35 Mich. 431 (1877). The rule against splitting may therefore, through the doctrine of merger, operate to prevent a plaintiff, who has successfully litiga......
  • Randall v. Johnstone
    • United States
    • North Dakota Supreme Court
    • 18 March 1913
    ...which prevents the splitting up of causes of actions is a rule of justice, and is not to be classed among technicalities. Dutton v. Shaw, 35 Mich. 431; Dils v. Justice, 137 Ky. 822, 127 S.W. 472; 23 1178; Freeman, Judgm. § 241, and cases cited. One recovery, although it be for a part only o......
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