Menges v. Milton Piano Company

• Decision Date: 25 November 1902
• Citation: 70 S.W. 728,96 Mo.App. 611
• Parties: CHARLES J. MENGES, Appellant, v. MILTON PIANO COMPANY, Respondent
• Court: Missouri Court of Appeals

70 S.W. 728

96 Mo.App. 611

CHARLES J. MENGES, Appellant, v. MILTON PIANO COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

November 25, 1902

Appeal from St. Louis City Circuit Court.--Hon. Selden P. Spencer Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Christian F. Schneider and Kurt Von Reppert for appellant.

(1) A judgment for damages for breaches of a contract occurring prior to the filing of such suit is not a bar to another suit for damages for breaches of said (same) contract occurring after the filing of the first suit and not included in said judgment, where the damages sought to be recovered are damages for separate and distinct breaches of a continuous contract of uncertain duration, divisible and apportionable in its nature and not for a total breach or termination of such contract. The case at bar is such a suit. Priest v Deaver, 22 Mo.App. 276: 8 Am. and Eng. Ency. of Law, p 548, par. 2; also p. 608; also p. 610, p. 682; note 1, p. 683. 21 Am. and Eng. Ency. of Law, p. 208, 214 and 215; Badger v. Titcomb, 15 Pick 409; Bassler v. Nichols, 8 Ind. 260.

Lee W. Grant and P. B. Kennedy for respondent.

Whatever may have been the law in other States, it was said in an early case: "It is now well settled that a judgment concludes the rights of the parties in respect to the cause of action stated on the pleadings on which it was rendered, whether it includes the whole or only a part of the demand sued on, upon the ground that an entire claim arising either upon contract or tort can not be split up into several actions." Union etc., Co. v. Trabue, 59 Mo. 355; Och v. Railway, 130 Mo. 27.

BLAND, P. J. Barclay and Goode, JJ., concur.

OPINION

BLAND, P. J.

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

"On the twenty-fourth 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 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 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 counter-claim which need not be considered.

"On the fifteenth 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.

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 fifteen 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 first to June first, 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 Union R. R. & Transportation Co. v. Traube, 59 Mo. 355, 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, can not be split up into several actions." See also Och v. M., K. & T. R'y Co., 130 Mo. 27, 49; Savings Bank v. Tracey, 141 Mo. 252, 42 S.W. 946.

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 ninth of November, 1882, plaintiff sued defendant for two weeks wages following October twenty-first, 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 damages 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. The Springfield Engine & Thresher Co., 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. Afterwards, 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 this action to recover the amount paid on the second and third of said notes. Held, that defendants' refusal to deliver the notes, on plaintiff's rescission of the sale and demand of them, constituted a conversion of the notes, and plaintiff's right of action then accrued for the entire damages for the conversion of the four notes, and that he could not split it into several actions; and his suit and judgment for damages for the conversion of the first and fourth notes was a bar to this action for...