Holland v. Forcum-James Cooperage & Lumber Co.

• Decision Date: 13 July 1926
• Citation: 285 S.W. 569
• Court: Tennessee Supreme Court
• Parties: HOLLAND v. FORCUM-JAMES COOPERAGE & LUMBER CO.

285 S.W. 569

HOLLAND v.FORCUM-JAMES COOPERAGE & LUMBER CO.

Supreme Court of Tennessee.

July 13, 1926.

Appeal from Circuit Court, Dyer County; Robert A. Elkins, Judge.

Action by Athlyn Holland against the Forcum-James Cooperage & Lumber Company.Judgment for plaintiff was reversed by the Court of Appeals, and the plaintiff appeals.Reversed, and judgment of the circuit court for plaintiff affirmed.

John M. Drane, of Newbern, for appellant.

Morris & Morris, of Obion, and Draper & Rice, of Dyersburg, for appellee.

COOK, J.

This action was commenced before a justice of the peace to recover damages from the company "for breach of contract let to defendant for building a dwelling house * * * in failing * * * to use good material for the roof, and failing to put the roof on in workmanlike manner * * * as promised, causing the roof to leak and let in rain, to the damage of the house and furniture."

The justice of the peace awarded judgment for $400, and the company appealed.In the circuit court the company pleaded nil debit, non assumpsit, res adjudicata, and the statute of limitations of three years.Upon issues submitted a jury assessed $450 damages, upon which judgment was rendered against the company, and appeal carried the case to the Court of Appeals.That court held defendant's plea of former adjudication good; that Holland was estopped by the proceeding in the chancery court brought by the company against him to recover the contract price for the building.The court said the chancery proceeding was the action by the company to recover the contract price, and Holland's action, subsequently commenced, involved a question that should have been determined in the chancery proceeding, which was a suit on the identical contract for the building of the house, and this is an action for damages alleged to flow from the contract for building the house.In other words, the Court of Appeals held that it was Holland's duty to present as a defensive action his claim for damages in the chancery proceeding brought to enforce the mechanic's lien.

It is the rule that a person suing cannot split indivisible causes of action into separate suits, and that is true whether the action is founded in tort or upon contract.Saddler v. Apple, 9 Humph.342.

It is also the rule that a party, whether plaintiff or defendant, is entitled to only one hearing on the merits, and defenses cannot be split, but the person sued should present all of his defenses to the indivisible cause of action.Hume v. Bank, 1 Lea, 223.

We do not understand that this rule may be invoked as against independent or divisible actions or defenses to actions.It is not obligatory upon a defendant to plead recoupment.By recoupment a remedy of common-law origin, carried into section 4639.Shannon's Code, Holland could have set up a defensive claim of damages in the chancery proceeding to enforce the mechanic's lien.He could have pleaded recoupment in reduction of the demand, either because the builder failed to perform the obligation of the contract, or because the builder violated some duty imposed by law in performance of the contract.Lewis v. Woodfolk, 2 Baxt. 25;Scatchard v. Barge &...