Menges v. Milton Piano Co.

• Decision Date: 25 November 1902
• Parties: MENGES v. MILTON PIANO CO.
• Court: Missouri Court of Appeals

70 S.W. 728

96 Mo. App. 611

MENGES v. MILTON PIANO CO.

Court of Appeals at St. Louis, Missouri.

November 25, 1902.

CONTRACTS—ACTIONS FOR BREACH—RES JUDICATA.

1. A judgment for plaintiff in an action for breach of a contract giving plaintiff the exclusive agency for the sale of defendant's pianos in designated cities, and containing a stipulation that defendant would pay a fixed sum for each breach thereof by it, is not a

bar to a subsequent action for breaches committed after the commencement of the former action.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Charles J. Menges against the Milton Piano Company. From a judgment for defendant, plaintiff appeals. Reversed.

Kurt Von Reppert, for appellant. Lee W. Grant, for respondent.

BLAND, P. J.

We adopt the following statement of the case made by respondent:

"On the 24th day of October, 1900, appellant brought an action in the St. Louis circuit court for damages against respondent on account of a breach of contract entered into between the parties on July 6, 1898 (said breach consisted of the selling of pianos to persons other than plaintiff, by defendant), the essential parts of which contract are the following clauses:

"`The said Charles Menges shall have the sole and exclusive sale and agency for the said Milton piano, or any piano sold or manufactured by the said Milton Piano Company, in and for the city of St. Louis, in the state of Missouri, and the city of East St. Louis, state of Illinois, for so long a period as the said Menges shall buy or sell for said Milton Piano Company not less than fifteen pianos per year. Each year to begin on the first day of June of each year, and terminate on the first day of June following.

"`Said piano company, in consideration of the premises, does further agree and stipulate, and does hereby bind itself and its successors, to pay to said Charles Menges the sum of $100.00 for each and every breach of the above contract that may be caused or made by the said Milton Piano Company, its officers, agents, or servants.'

"This case was tried, and there was a verdict on November 1, 1901, in favor of plaintiff for $1,400. Judgment was entered on this verdict, less a counterclaim, which need not be considered. On the 15th day of May, 1901, appellant brought the present suit, which is an action for damages upon the same contract, but for damages accruing from the date of the bringing of the first suit to the time of the bringing of the second suit. Respondent pleaded a defense on the merits, and also pleaded the pendency of the first suit in bar of the present action. The reply admitted the pendency of the first suit, and alleged that it was for prior breaches of the same contract. At the trial of this action, appellant offered in evidence the contract in controversy, forming the basis of both suits. Thereupon defendant objected to the introduction of the contract in evidence on the ground that it was admitted by the pleadings that a prior suit had been brought for breach of said contract by the plaintiff against this defendant; also on the ground that a judgment had been rendered in said former suit. It was admitted by plaintiff that the contract offered in evidence is the contract referred to in the pleadings in this case, and that a judgment had been rendered in the prior case referred to in the pleadings. The pleadings and judgment in the first case were also offered in evidence by defendant. The court sustained the objection. Plaintiff offered no further evidence, except to ask Mr. Menges, the plaintiff, whether at the time he brought the first suit he knew how many pianos had been sold either in the city of St. Louis or in East St. Louis. Defendant objected also to that question, which objection was sustained. There being no further evidence offered, judgment was rendered in favor of defendant."

Plaintiff appealed. From the judgment rendered on November 1, 1901, mentioned in the statement, defendant appealed to this court, where at the March term, 1902, it was affirmed; this court holding that the $100 agreed to be paid by the piano company for each breach of the contract was liquidated damages, and not a penalty. 70 S. W. 250. Under the contract sued on, no one but Menges may sell in St. Louis or East St. Louis the Milton Piano Company's pianos, or any other piano sold or manufactured by the Milton Piano Company; the contract to continue so long as Menges shall buy 15 pianos of the company, or sell that number within his territory (St. Louis and East St. Louis), during each year; the year to be reckoned from June 1st to June 1st of the following year. For every breach of the contract caused or made by the Milton Piano Company, it agreed to pay Menges $100 as stipulated damages, as the contract was construed by this court. From the very nature of the contract, it is apparent there may be repeated and successive breaches of it committed by the defendant. It provides for more than one breach, by stipulating that for each breach the defendant would pay Menges $100. The question in the case is whether or not plaintiff, having recovered damages for several breaches of the contract made by defendant, may sue to recover damages for other breaches committed during the life of the contract, but committed after the commencement of the first suit, or, in other words, is one judgment for a breach of the contract a bar to another suit for breaches made after the commencement of the suit in which the judgment was rendered?

In Transportation Co. v. Traube, 59 Mo., loc. cit. 362, it is said, "It is now well settled that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings on which it was rendered, whether it includes the whole or only part of the demand sued on, upon the ground that an entire claim, arising either upon a contract or wrong, cannot be split up into several actions." See, also, Och v. Railway Co., 130 Mo., loc. cit. 49, 31 S. W. 962, 36 L. R. A. 442; Bank v. Tracey, 141 Mo. 252, 42 S. W. 946, 64 Am. St. Rep. 505. Apt illustrations of the rule are found in Taylor v. Heitz, 87 Mo. 660, where the facts were that the defendant conveyed to plaintiff land by deed containing a covenant against incumbrances. There was an outstanding lease made by the grantor, which had about four years to run. The grantee brought suit and recovered damages for breach of the covenant. Afterwards, at the expiration of the lease, the grantee having died, his administrator brought a second suit for the breach of the covenant, for the value of rents which had accrued after the bringing of the first suit. Held, that the cause of action on the covenant was entire and indivisible, and that the second suit could not be maintained. In Soursin v. Salorgne, 14 Mo. App. 486, the facts were that defendant on March 3, 1882, hired plaintiff, a skilled mechanic, for a period of five years, at a wage of $35 per week. On October 21, 1882, defendant wrongfully discharged plaintiff. On the 9th of November, 1882, plaintiff sued defendant for two weeks' wages following October 21st, when he was discharged, and recovered judgment for $70. Afterwards he sued for his services for the week ending October 28, 1882, and for every week thereafter up to May 12, 1893. It is said: "A servant unlawfully discharged may treat the contract as rescinded, and sue on a quantum meruit for services actually rendered, or he may bring his action for damages for breach of contract. He may wait to do this until the term is ended, and recover his actual damages, or he may sue at once, and recover his probable damage from the breach. But when he has elected his remedy and pursued it, a judgment in one action will be a bar to a further suit." In Skeen v. Thresher Co. (K. C.) 42 Mo. App. 158, the facts were: "Plaintiff bought an engine, and gave four notes therefor, and subsequently returned the engine, rescinded the sale, and demanded the notes, which were refused. Afterward plaintiff was compelled, at the suit of an innocent holder, to pay the first and fourth of said notes, and thereupon sued the defendant, and recovered the amount so paid. Thereafter plaintiff brought...