Kerr v. Simmons

• Decision Date: 23 November 1880
• Citation: 9 Mo.App. 376
• Parties: GEORGE W. KERR, Respondent, v. E. C. SIMMONS ET AL., Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 376

GEORGE W. KERR, Respondent,

v.E. C. SIMMONS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 23, 1880.

A failure to surrender leased premises at the expiration of the term is a breach of the covenant; and a recovery of double rent, under the terms of the lease, for holding over one month is a bar to a recovery, under the same covenant, for a second month.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

J. M. & C. H. KRUM, and W. B. DOUGLAS, for the appellants: A single demand cannot be split up and made the basis of two or more suits.-- Wagner v. Jacoby, 26 Mo. 532; Miller v. Covert, 1 Wend. 487; Secor v. Sturgis, 16 N. Y. 554. A breach of a lease covenant to return the property constitutes but one and an indivisible demand.-- Sir Moil Finche's Case, 2 Leon. 143; Stein v. Prairie Rose, 17 Ohio St. 472; Bancroft v. Winspear, 44 Barb. 209; Logan v. Caffrey, 30 Pa. St. 106; Simes v. Zane, 24 Pa. St. 242; Booge v. Railroad Co., 33 Mo. 212; Davis v. Maxwell, 12 Metc. 286; Trask v. Railroad Co., 2 Allen, 331; Pinney v. Barnes, 17 Conn. 420.

THOMAS T. GANTT, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues upon a lease, executed by his assignor to the defendants, of certain premises in the city of St. Louis, for the term of five years from the first day of January, 1874, at the yearly rent of $12,500, payable monthly. The lease contained the following covenants: “The said party of the second part, on his part, agrees to pay the rent herein reserved, and double rent for every day they, or any one else in their name, shall hold on to the said premises after the expiration of the term hereby created, or its forfeiture for any cause whatever; to surrender the premises to said lessor, his assigns or legal representatives, at the expiration of said term, in as good condition as they received the same, only excepting,” etc. The petition alleges that the defendants duly paid the rent during the term, but did not surrender the premises on its expiration; that, on the contrary, the defendants held possession until February 28, 1879; that the plaintiff has sued them in another action for the rent of said premises for the month of January, and now prays judgment for double rent for the month of February. The amended answer denies generally, except as to the suit for January rent, and alleges that the plaintiff recovered therein against the defendants the sum of $2,126.63, and that the action was based upon the same alleged covenant which is here sued upon. No reply was filed. There was a verdict and judgment for the plaintiff. The question for our determination is whether the recovery in the first suit was a bar to the present action.

Questions as to the extent to which a recovery upon part of a claim, or series of claims, will operate to bar an action upon the residue, have sometimes been very difficult of solution. In cases of tort the rule is very simple. Where there has been a recovery of damages on account of a trespass, no new action can be founded on the same wrongful act, even though additional damages may have arisen which did not exist at the institution of the first suit. Hodsoll v. Stallebrass, 11 Ad. & E. 301; Fetter v. Beale, 1 Salk. 11. In actions founded on contract the test question generally is, whether the second suit is for a breach of the same or a different undertaking from that upon which the first suit was maintained. There may be in the same instrument several separate promises or undertakings for as many distinct considerations. Thus, in a lease for one year, the rent to be paid monthly, there are twelve separate undertakings of payment, in effect--one for each month of the term. There are also as many separate considerations. For, while the whole term may be regarded as a general consideration applying to all the payments, yet the occupancy for each month is the distinctive consideration for the payment attaching to that month. It results that the lessor may obtain a judgment for non-payment of the rent for June, but this will not prevent a subsequent recovery for a failure to pay the rent for July. The same rule applies, however, in many cases where the consideration remains the same for successive payments. A note payable in one year, with interest payable semi-annually, comprises two distinct contracts: one to pay the principal sum, and the other to pay the interest. Separate suits may be maintained on the two demands. Andover Savings Bank v. Adams, 1 Allen, 28. A second action of assumpsit may be maintained by a second indorser against the first indorser of a note, for moneys paid on account of the note, after a former action and recovery for moneys previously paid. Wright v. Butler, 6 Wend. 284. Here the liability arises upon an implied request by the first indorser, growing out of his legal liability to indemnify the second for any payment he may be required to make. But as no such request can be implied for the second indorser's benefit until he has actually made a payment, it is obvious that for each payment there is a separate assumpsit. Hence the second suit, although arising out of the same transaction, is not upon the same contract as the first. In Secor v. Sturgis, 16 N. Y. 548, the business of ship-carpenters was carried on in one part of a building, under the direction of two of the parners in a firm, and the business of ship-chandlers in another part of the same building, under the direction of a third partner. Separate books of account were kept by different clerks in the two branches of business. The defendants contracted indebtedness in each department on account of the same brig. After a judgment obtained on one account, suit was instituted upon the other, against which the previous recovery was set up as a bar. The defence was overruled, on the distinct ground that the two claims, although concurrent in point of time, were founded upon separate contracts or causes of action. These cases will serve to illustrate a universal test of the divisibility of rights of action, whether upon concurrent or successive grounds of complaint. An application of this test to the case of a contract which is single, determinate in itself, and therefore indivisible, will exemplify a different result.

It is sometimes said that if the cause of complaint in a second suit might have been included in the first, but was not, the second action will be barred by a judgment in the first. Bagot v. Williams, 3 Barn. & Cress. 235. But it does not follow that a second action may always be maintained when the cause of complaint could not be introduced into its predecessor. This fact, as we have already seen, is verified in actions founded in tort. In actions of contract the bar will be complete whether the cause of complaint could or could not have been included in the first proceeding, if only the second be an attempt to enforce the same contract or undertaking. Thus, in Fish v. Folley, 6 Hill, 54, the defendant's intestate had covenanted, in 1822, to furnish the plaintiff with sufficient water, under certain limitations and exceptions, to carry the plaintiff's fulling-mill and carding-machine. In January, 1835, the plaintiff sued for a continuous breach of the covenant, dating from 1826, and got judgment. In 1840 he again sued on account of a continuous omission to supply water since 1835, claiming that this was a new breach, which could not be included in the former suit. It was held that, the contract being entire and the same, a total breach put an end to it, and to allow a second recovery “would be splitting up an entire cause of action, in violation of established principles.” In Stuyvesant v. Mayor, 11 Paige, 414, the complainant had granted to the corporation of the city of New York certain lands for the purposes of a public square, the city covenanting that such lands should forever be used and appropriated for the purposes of a public square exclusively, and that the corporation would immediately proceed to regulate the lands granted, and would enclose and improve the same in a specified manner. It was held that “the covenant to grade and enclose and improve the premises was not a continuing covenant, but a covenant which was to be performed within a reasonable time; and that a recovery in an action for the breach of that covenant, brought after the expiration of a reasonable time to perform the same, was a bar to any further recovery of damages for the breach thereof, and was also a bar to a suit in equity for the specific performance of such covenant.”

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