Le John Mfg. Co. v. Webb

• Decision Date: 19 September 1952
• Docket Number: No. 1252.,No. 1251.,1251.,1252.
• Citation: 91 A.2d 332
• Parties: LE JOHN MFG. CO. v. WEBB.
• Court: D.C. Court of Appeals

91 A.2d 332

LE JOHN MFG. CO. v. WEBB.

No. 1251.

No. 1252.

Municipal Court of Appeals for the District of Columbia.

Argued August 11, 1952.

Decided September 19, 1952.

Lawrence J. Simmons, Washington, D. C., for appellant.

Bolling R. Powell, Jr., Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

We have before us two appeals from judgments entered in favor of plaintiff in two actions on an alleged contract of employment by which he was to represent defendant as a "manufacturer's agent."

The two suits were filed in the trial court on the same day and at the same time. Both complaints alleged that plaintiff was to represent defendant in soliciting and servicing all United States Government agencies on products manufactured by defendant who agreed to pay plaintiff 5% of the selling price in all contracts of sale consummated between it and the Government. The complaints differed only as to the amount allegedly due plaintiff in commissions on two separate sales by defendant to the Government on two separate occasions and with two separate Governmental agencies. In the first suit plaintiff asserted that he was entitled to $2500 representing the full 5% of the amount of one sale; and in the second suit he claimed $1121.86 as the balance of 5% due on another contract of sale. The two actions were consolidated for trial and resulted in findings for plaintiff.

In bringing these appeals, defendant assigns several errors. We reach only one, which being jurisdictional, will dispose of the entire litigation. Appellant challenges the right of the Municipal Court to entertain the suits on the ground that the amount in controversy exceeds its jurisdictional limit of $3000.¹ It is appellant's position that plaintiff has split his single cause of action in order to bring his claim within the jurisdiction of the Municipal Court.² This is based on D.C. Code 1951, § 11-755(a) which provides that the Municipal Court shall have jurisdiction of civil actions "* * * in which the * * * debt or damages claimed * * * does not exceed the sum of $3,000". Under this section we have held that if in fact plaintiff has but one cause of action he has but one claim which cannot be split. McChesney v. Moore, D.C. Mun.App., 78 A.2d 389; Astor Pictures Corporation v. Shull, D.C.Mun.App., 64 A.2d 160.

Appellant contends that even if there were two breaches of the contract, the breaches merely consisted of failure to pay commissions upon two separate sales made at separate times, and that all claims for accrued compensation under the one contract between the parties must be included in a single suit.

Appellee argues that these suits did not violate the rule against splitting a cause of action because there were two separate demands which, though both were due when suit was filed, were completely independent of each other to such an extent as to form separate and distinct causes of action. In brief and argument appellee 'asserts that this is not a case of two installments due under a contract, but that there was one cause of action for the refusal to pay the balance of $1121.86, and a separate cause of action for $2500 lost because of wrongful discharge under the contract.

However, the record seems to make it plain that with regard to that part of plaintiff's claim (for $2500) the complaint was one for commission earned and plaintiff devoted himself to proving that fact. It is true one of the defenses was that the contract had been terminated for cause before the sale had been consummated and therefore plaintiff was entitled to no commission on that sale. But we think it clear from the record as a whole that the award of $2500 in that case was not for damages for wrongful discharge, but was for a commission actually earned³ and the theory of a wrongful discharge was not presented to the court as a basis for recovery. Hence, plaintiff should not on this appeal be permitted to take that position or advance that theory for the first time. Johnson v. Ginnis, D.C.Mun. App., 88 A.2d 847; Brooks v. Jensen, D.C. Mun.App., 73 A.2d 32. We do not imply that the theory now suggested by plaintiff would require a different result; we simply take the case as we find it.

Thus the sole issue for our consideration is whether a plaintiff who brings suit for commissions earned under an employment contract must include therein all commissions known to be due to him thereunder at the time the suit is brought. We think that question must be answered in the affirmative.

As the trial judge pointed out in his memorandum opinion (refusing a new trial), "What constitutes a single cause of action is often a difficult question." Also that several tests, none of them completely satisfactory for all cases, have been advanced by the courts to determine when there is a single cause of action.⁴ Indeed as deplored by one writer, cases bearing on the rule of splitting the cause of action "can be piled up (uselessly) with a scoopshovel."⁵ We shall attempt to direct our discussion to the precise facts of this case.

It is not open to doubt that under an ordinary installment contract a suit may be brought on each installment as it falls due.⁶ As a general rule that proposition is similarly applicable to an employment contract which provides for compensation in equal payments.⁷ In that sense the contract is divisible and failure to pay each installment as it falls due gives rise to a separate cause of action.

But when a plaintiff decides to sue he must include all installments then due and owing or else, under principles of res judicata, forever lose his right to maintain a later action on those which were due but omitted from his suit. Sutcliffe Storage & Warehouse Co. v. United States, 1 Cir., 162 F.2d 849; Buchanan v. General Motors Corporation, 2 Cir., 158 F. 2d 728; Restatement, Judgments, sec. 62, comment (h); see also Goodwin v. Cabot Amusement Co., 129 Me. 36, 149 A. 574. It has been held that breaches of contract prior to the commencement of suit for such breaches constitute a single cause of action. Buchanan v. General Motors Corporation, D.C.S.D.N.Y., 64 F.Supp. 16, 18. This doctrine is in the nature of a rule of repose with the double purpose of protecting courts as well as litigants from the harassment of repetitious litigation. Buder v. Fiske, 8 Cir., 174 F.2d 260, 268. The rule has been applied where the claim was not for a stated amount but was determined by percentages. Goodwin v. Cabot Amusement Co., supra. It has also been applied to employment contracts providing for payments based on a percentage of...