Hughes v. Dundee Mortg. Trust Inv. Co.

• Decision Date: 31 March 1886
• Docket Number: 1065.
• Parties: HUGHES v. DUNDEE MORTGAGE TRUST INVESTMENT CO., Limited. (No. 1,065.)
• Court: U.S. District Court — District of Oregon

26 F. 831

HUGHES v. DUNDEE MORTGAGE TRUST INVESTMENT CO., Limited.

(No. 1,065.)

No. 1065.

United States Circuit Court, D. Oregon.

March 31, 1886

Ellis G. Hughes, pro se.

Earl C Bronaugh, for defendant.

DEADY J.

This action was commenced on September 5, 1884, to recover the sum of $11,222.74, with interest from January 31, 1880, to date amounting in all to $15,350.19. It is alleged in the complaint that the plaintiff is a citizen of the state of Oregon, and the defendant is a corporation duly formed under the laws of Great Britain, having its principal office at Dundee, Scotland, and is now lawfully engaged in business in Oregon, and that the Oregon & Washington Trust Investment Company was, from January 1, 1875, to January 31, 1880, a corporation also duly formed under said law, engaged in loaning money in Oregon and Washington on note and mortgage with an agency at Portland; that during said period plaintiff was a practicing attorney at law, resident at Portland, and at the request of said trust investment company, and for its use and benefit, did 'make and issue to it in writing' 554 separate certificates, whereby he became responsible to said corporation that the title to the real property mentioned therein was in the party seeking a loan thereon, and that the same was free from all liens and incumbrances, for which service and responsibility said trust investment company 'undertook and agreed to pay the plaintiff the reasonable value' thereof, which is 1 per centum on the amount of the loans made on said certificates, namely, $1,122,274, and that said trust investment company, on January 31, 1880, by reason of the issuing of said certificates, became and was indebted to the plaintiff in the sum of 1 per centum on said amount, namely, $11,222.74; that on January 31, 1880, said trust investment company amalgamated with the defendant, and assigned all its property thereto, in consideration whereof the latter 'did assume and agree to pay all and every of the debts and liabilities' of the former, including the debt due the plaintiff; but that neither of said corporations has paid the same, or any part thereof, and the whole is now justly due him from the defendant.

Among other defenses, the answer of the defendant contains the following: The plaintiff ought not to have or maintain this action because, on February 12, 1883, he commenced an action against the defendant in this court, alleging in the complaint therein that said trust investment company did, about January 1, 1876, appoint the plaintiff its attorney, to attend to its business in Oregon and Washington, pursuant to which the plaintiff did, between January 1, 1876, and January 1, 1880, render service to said corporation 'in consulting and advising it about its business, and other acts and attendance in and about said business, at its request, of the value of $2,500 per annum:' that about January, 1880, said corporation amalgamated with the defendant, who thereupon 'assumed its indebtedness and liabilities, including its indebtedness to plaintiff,' and that 'thereafter the plaintiff rendered services to the defendant as its attorney, and paid out money for it, up to January 1, 1882,' the value of which amounted to $2,500; that it was also alleged in the complaint in said action that the defendant was indebted to the plaintiff for services rendered in two certain law suits in the further sum of $755.80, and that the aggregate of defendant's liability to plaintiff on these several accounts was $21,258.80; that the defendant made a defense to the action, and on the trial thereof the plaintiff had judgment for the sum of $8,407.61, and $390.05 costs and disbursements, which judgment remains in full force and effect. It is then alleged in the defense that the service mentioned in the complaint herein was rendered before the commencement of said former action, and that whatever sum of money may be due the plaintiff for or on account of such service was due prior to the commencement of said former action; and that all the service alleged in the complaint herein to have been rendered to the trust investment company, and to this defendant, was performed under an appointment of plaintiff as the attorney of the trust investment company and this defendant, as alleged in the complaint in said former action; wherefore the defendant says that the plaintiff is 'by said former judgment forever barred from recovering herein.'

To this defense the plaintiff demurs, for that it does not contain facts sufficient to constitute a defense; and the point relied on in the argument in support of it is 'that it does not appear that the claim or account of the indebtedness of the trust investment company made in the former action was placed (put) in issue, litigated, or passed in to judgment therein. ' The point was also made that the judgment in the former action was suspended by operation of the writ of error sued out thereon by the defendant, but was afterwards specially withdrawn.

In support of the point the plaintiff cites 1 Tidd, pr. 685; Russell v. Place, 94 U.S. 610; and Bigelow, Estop. 587-589. It is apparent from this that the plaintiff has misconceived the nature of this plea or defense. It is not, as he appears to think, a plea of a former recovery or adjudication of the claim sued on here, and that, therefore, it must show, with the certainty required in pleading an estoppel, that such claim was made and passed on in said former action. But the defense is a plea that the plaintiff brought a former action on the same cause of action,-- the same contract or account,-- by reason of which he is barred from maintaining another action thereon, or any part thereof, although such part may not have been actually set up in the other action.

This defense is not an estoppel, but a bar, founded on a rule of public policy, as just and expedient as the statute of limitations. This rule declares that no one ought to be twice vexed for the same cause,-- nemo debet bis vexari pro eadem causa. It assumes that it is better that a plaintiff who wantonly or negligently splits a claim into parts for the purpose of suit should lose one of them than that the adverse party should be needlessly harassed by litigating, in detail, matters that could and should have been determined in one action. As was said by Mr. Justice NELSON, in Guernsey v. Carver, 8 Wend.

494 'the law abhors a multiplicity of suits,' and therefore, if a party bring an action on a part only of an entire and indivisible demand, the pendency thereof may be pleaded in abatement of another action on the remainder, and a judgment in either may be pleaded as a bar of the other. Bagot v. Williams, 3 Barn.& C. 235, S.C. 10 C.L. 115; Logan v. Caffrey, 30 Pa.St. 196; Warren v. Comings, 6 Cush. 103; Lucas v. Le Compte, 42 Ill. 303; Farrington v. Payne, 15 Johns. 432; Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 Wend. 207; Beekman v. Platner, 15 Barb. 551; Reformed P.D. Church v. Brown, 54 Barb. 191. Secor v. Sturgis, 16 N.Y. 548; Baird v....