Grant v. Parker-Russell Mining & Mfg. Co.

• Decision Date: 05 December 1933
• Docket Number: No. 22696.,22696.
• Court: Missouri Court of Appeals
• Parties: GRANT v. PARKER-RUSSELL MINING & MFG. CO.

65 S.W.2d 143

GRANT v. PARKER-RUSSELL MINING & MFG. CO.

No. 22696.

St. Louis Court of Appeals. Missouri.

December 5, 1933.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be published in State Reports."

Action by Lee W. Grant, administrator of the estate of Fred Bredel, deceased, against the Parker-Russell Mining & Manufacturing Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Douglas W. Robert, of St. Louis, for appellant.

Barton N. Grant and Robert T. Burch, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action which was instituted on January 13, 1930, by Fred Bredel, a gas engineer, to recover the sum of $1,440 with interest, alleged to be due him from defendant, the Parker-Russell Mining & Manufacturing Company, upon a contract entered into between the two on January 10, 1924, by the terms of which contract defendant was obligated to pay Bredel, in addition to a stated salary, a sum equal to $2 per 1,000 cubic feet daily capacity of gas ovens designed by Bredel and erected by defendant. Pending the action, Bredel died; and the cause was thereafter revived in the name of Lee W. Grant, the administrator of his estate. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the aggregate sum of $1,328.29 and from the judgment rendered, defendant has duly appealed.

This action involves the reconstruction and re-erection, according to plans prepared by the deceased, of three gas ovens of a daily capacity of 720,000 feet in a plant at Kalamazoo, Mich., the work having been begun by defendant on September 1, 1925, and completed on March 1, 1926.

On March 19, 1926, there was instituted a prior and separate action by Bredel against defendant, growing out of the same contract, but involving the making of plans for and the construction of other gas ovens at Kalamazoo, Mich. The ovens so constructed on that job, which was completed prior to November 16, 1925, were of a daily capacity of 1,000,000 cubic feet, so as to have entitled Bredel to payment of the sum of $2,000.29; which was the amount of his recovery. That case likewise reached this court upon the defendant's unavailing appeal from the judgment in Bredel's favor; and is reported as Bredel v. Parker-Russell Mining & Manufacturing Co. (Mo. App.) 21 S.W.(2d) 932.

The petition in the instant case counted upon the plaintiff's right to recover pursuant to the terms of the contract, the validity of which had been determined in the prior action.

For its answer, defendant set up the former judgment as a bar to the prosecution of this action, in that the present cause of action had accrued prior to the institution of the former action; and, further, that in consideration of expense to which defendant had been put on a former job on account of Bredel's carelessness, the latter had waived any and all royalties otherwise coming to him for the use of his plans in the reconstruction of the ovens involved in this action.

The reply was in the conventional form.

The chief insistence of defendant is that the demurrer to all the evidence should have been sustained upon the theory that it conclusively appeared that Bredel's prior recovery was a bar to his recovery in this action. As the authorities run, the conclusion seems to us to be inescapable that the point is well taken.

It is well settled that where the plaintiff's demand is an entirety, though consisting of several items, he may not split it up into separate actions and harass the defendant by a multiplicity of suits; and if this be attempted, and different actions be brought for different parts or portions of such claim or demand, a judgment on the merits in one proceeding will absorb and destroy the whole cause of action, and bar the right of action on the residue. See v. See, 294 Mo. 495, 242 S. W. 949, 24 A. L. R. 880; Loyless v. Roberts, 212 Mo. App. 55, 253 S. W. 207; Peper Automobile Co. v. St. Louis Union Trust Co. (Mo. App.) 187 S. W. 109; Viviano v. Ferguson (Mo. App.) 39 S.W.(2d) 568.

However, the inhibition against the splitting of a cause of action necessarily presupposes a demand which is an entirety; and the difficulty encountered ordinarily lies in determining whether a given demand is single, indivisible, and entire, or whether it arises out of two or more separate and distinct causes of action. Obviously, it is quite impossible to announce a rule which will invariably resolve every such question beyond peradventure of doubt, but as a general proposition the test is said to be whether the...