Liddell v. Chidester

• Decision Date: 14 June 1888
• Parties: LIDDELL v. CHIDESTER.
• Court: Alabama Supreme Court

4 So. 426

84 Ala. 508

LIDDELL v. CHIDESTER.

Supreme Court of Alabama

June 14, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

This was an action brought by the appellee, Thomas H. Chidester against the appellant, Forbes Liddell, for the recovery of a balance alleged to be due the plaintiff from the defendant for services rendered, and by contract entered into by plaintiff and defendant. The defendant pleaded the general issue, payment, and res adjudicata. The plaintiff demurred to the defendant's plea of res adjudicata. The court overruled the demurrer. There was then a replication, and the pleadings were very full. The court charged the jury, at the written request of the plaintiff, as follows: (1) "If the jury believe all the evidence, they must find a verdict for the plaintiff." (2) "If the jury believe the evidence, the plaintiff would be entitled to recover the balance due under said contract for each month, or part of a month thereof, from the 1st day of August, 1885, at the contract price, until the end of the contract year, which was February 26, 1886, with interest thereon from this last date." The defendant objected to the giving of each of these charges by the court and duly excepted to the court's overruling his objection. The rulings of the court on the demurrer, and the giving of the first and second charges requested by the plaintiff, were here assigned as error.

Arrington & Graham, for appellant.

Troy, Tompkins & London, for appellee.

STONE C.J.

The most important inquiry in this case, alike of law and of fact, was whether Chidester was employed by Liddell to perform a year's service for $1,000, to be paid in gross or to be paid in monthly installments. If the former, then the recovery and enforcement of the judgment for a part of the demand in June, 1886, is a complete defense and bar to this action, and nothing should be recovered. This, under the well-known principle that a plaintiff cannot split up a single cause of action into two or more suits; and if he does so, and recovers a part of his demand, this is a waiver of and a bar to the residue of his claim, be it much or little. Oliver v. Holt, 11 Ala. 574; O'Neal v. Brown, 21 Ala. 482; Railroad Co. v. Henlein, 56 Ala. 368; Wharton v. King, 69 Ala. 365. If, on the other hand, the wages were due and demandable at the end of each month, then the recovery of one installment, unreversed, is a complete answer to and preclusion of all defenses to the merits which were or could be pleaded to such second suit. Rake v Pope, 7 Ala. 161; 3 Brick. Dig. p. 580, § 75 et seq.; 1 Whart. Ev. § 758; Gardner v. Buckler, 3 Cow. 120. The contract in this case was by telegraphic correspondence. Liddell's offer was: "If one thousand dollars a year is an inducement, come immediately. Answer." Chidester's acceptance was: "Will accept one thousand dollars a year." These communications, unexplained, show a single contract for a year; the wages to be $1,000 in gross. There was testimony that, up to the time of Chidester's discharge, his wages were paid to him monthly; but the testimony on this subject was somewhat in conflict. Partridge v. Forsyth, 29 Ala. 200; Insurance Co. v. Insurance Co., 81 Ala. 320. It is contended for the appellee that the verdict and judgment in the former suit-that which was tried in 1886-are conclusive that Chidester's wages were due and payable in monthly installments, and that without such finding the jury could not have rendered a verdict in his favor. The elements necessary to constitute a judgment in one suit a bar to a second suit are "(1) that the issue in the second action, upon which the judgment is brought to bear, was a material issue in the first action, necessarily determined by the judgment therein; (2) that the former judgment was upon the merits." Freem. Judgm. § 256. "It is only of those matters which, as promises, enter into and uphold the judgment, (the judgment being the conclusion of the syllogism,) and connected, qualifying matters, which, if produced, would change or impair the legal force and effect of the cause of action itself on which the judgment was rendered, that the judgment pronounced becomes conclusive." Haas v. Taylor, 80 Ala. 459, 2 South. Rep. 633. To be a bar it must appear that the fact claimed to have been established "was essential to the finding of the former verdict." 1 Greenl. Ev. § 534; Chamberlain v. Gaillard, 26 Ala. 504; Gilbreath v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 368; Hanchey v. Coskrey, 81 Ala. 149, 1 South. Rep. 259. In the first suit, instituted before a justice of the peace, the cause of action was described as follows: "The plaintiff claims of defendant $41.50, due by a/c. on 26th July, 1885, for salary due and for services rendered by plff. to the deft." When the case reached the circuit court by appeal, a new complaint was filed with three counts, two common and one special. The first count was "for work and labor done by the plaintiff for the defendant, and at his request, during the month of July, 1885." The second count was for the "sum of fifty dollars due by account stated between the plaintiff and the defendant on, to-wit, the 1st day of August, 1885." The third count was a special count. It averred that there was a contract for a year, the wages to be paid in monthly installments of $83.33; that plaintiff, Chidester, was serving, and ready to serve, when on July 15,...