Parsons v. Riley

• Decision Date: 30 January 1890
• Citation: 10 S.E. 806,33 W.Va. 464
• Parties: PARSONS et al. v. RILEY.
• Court: West Virginia Supreme Court

10 S.E. 806

33 W.Va. 464

PARSONS et al. v. RILEY.

Supreme Court of Appeals of West Virginia.

January 30, 1890

Submitted January, 17, 1890.

Syllabus by the Court.

1. Where an action for damages for breach of the conditions of a written contract is brought before a justice, and upon a general denial by the defendant of the complaint the justice hears the case upon the evidence and arguments of counsel and enters a judgment dismissing the plaintiff's suit for failure to prove the execution of the contract sued on, with costs, he cannot, by adding the words "without prejudice to a new suit," authorize a new suit for the same cause of action.

2. If a new suit is brought by the plaintiffs against the same defendant for the same cause of action, and the plea of res judicata is interposed by the defendant, it will bar the action.

3. The dismissal of the action under the circumstances of this case after it was heard and submitted, "without prejudice to a new suit," was equivalent to directing a nonsuit by the justice, which he had no authority to do after the case had been heard and decided.

Error to circuit court, Jackson county.

W. A Parsons, for plaintiff in error.

Warren Miller, N.C. Prickett, and J. H. Riley, for defendant in error.

ENGLISH J.

This was a suit brought before BEUNOS AYERS, a justice of the peace of Jackson county, on the 19th day of January, 1888, by W. A. Parsons and M. D. L. Lewis, for the recovery of money claimed to be due for damages for breach of a written contract, dated March 1, 1883, entered into between John H Riley and F. Leon Clerc, then deceased, and said Parsons and Lewis, in which the plaintiffs claimed judgment for $300 with interest and costs. The plaintiffs in their complaint alleged, in substance, that said Riley and Clerc agreed with plaintiffs to rent them the lower story of the brick store-building, situated in the town of Ripley, in Jackson county, opposite the court-house of the said county, said lower story of said building consisting of the store-room and the wareroom of the said building, for the term and period, upon the terms, and the rental and sum of money, mentioned in the said written agreement, which written agreement was filed as part of the complaint, and prayed to be read and considered therewith; that the said Clerc and Riley agreed with the plaintiffs in said written agreement to do all they reasonably could to stop and prevent the leaks in the roof of the said building, and thereby prevent injury to the goods, wares, and merchandise of the plaintiffs then kept, and to be kept, by them in said building; and that the said Clerc and Riley agreed with plaintiffs to use the rest of said building, which consisted of a large hall up stairs, and over the said store-room and wareroom and two smaller rooms, used as offices, so as not to interfere with the use of the rooms so rented by the plaintiffs as a store-room and wareroom; and they claimed, by way of assignment of breaches of said written agreement, that the said Clerc and Riley did not, nor did either of them, do, or cause to be done, all they, or either of them, reasonably could do to prevent the said leaks in said roof, or prevent injury to the goods of plaintiffs kept by them in the rooms so rented by them, but failed and refused so to do, so that the goods, wares, and merchandise of plaintiffs, kept by them in the said rooms, were greatly injured and impaired in value by reason of the leaks in the said roof, and water coming through the said roof, and falling upon said goods, and wholly ruining some of them; and also that said defendants did not use the rest of the said building so as not to interfere with the plaintiff's use of said rooms as a store-room and wareroom, but established and kept a skating-rink over the rooms occupied by the plaintiffs, and kept a noise day and night, thereby greatly interfering with the store-room and store business of the plaintiffs during all of their said term as tenants of the said Clerc & Riley, and they claimed damage to the amount of $300. The defendant, Riley, answered, denying each and all of these allegations made against him in said complaint. From the transcript of the justice it appears that issue was thereon joined, and, after hearing the evidence adduced by both parties, arguments were heard by both the plaintiff Parsons and defendant, Riley, and, after withholding judgment for 24 hours, said justice decided that the plaintiffs had failed in proving the execution of the written contract mentioned in the summons, dated March 1, 1883, as to the defendant, John H. Riley, and dismissed the plaintiffs' action, with costs, without prejudice to a new suit. And on the same day, to-wit, on the 6th day of February, 1888, the said Parsons and Lewis brought a new suit before the same justice for money due on contract, claiming judgment for $300, and from the complaint filed in said new suit it appears that it was brought for the same alleged cause of action. The defendant, Riley, filed an answer, denying everything alleged in said complaint, and claiming that, by the terms of said written agreement, dated March 1, 1883, it was expressly agreed that the said Clerc and Riley were not to be liable to plaintiffs...