Singer v. Pilton
| Decision Date | 05 January 1925 |
| Docket Number | 186 |
| Citation | 282 Pa. 243,127 A. 611 |
| Parties | Singer, Appellant, v. Pilton |
| Court | Pennsylvania Supreme Court |
Argued December 5, 1924
Appeal, No. 186, Jan. T., 1925, by plaintiff, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1921, No. 3726, on verdict for defendant, in case of Abram Singer v. William Pilton. Affirmed.
Assumpsit on building contract. Before SHOEMAKER, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned were various rulings on evidence and ruling as to set-off, quoting record.
The judgment of the court below is affirmed.
Edward Hopkinson, Jr., for appellant. -- A judgment settles everything involved in the right to recover, not only matters that were raised, but those which might have been raised Jenkins v. Scranton, 205 Pa. 598; Stearn's Co v. Hewes, 256 Pa. 577.
Where a party has several demands or existing causes of action growing out of the same contract or resting in matter of account, which may be joined or sued for in the same action, they must be joined: Hill v. Joy, 149 Pa. 243; Simes v. Zane, 24 Pa. 242; Fields v. Transit Co., 273 Pa. 282.
Robert Mair, with him Wayne P. Rambo and Ormond Rambo, for appellee.
Before MOSCHZISKER, C.J., WALLING, KEPHART, SIMPSON, SADLER and SCHAFFER, JJ.
Plaintiff agreed in writing to plaster certain houses for the sum of $10,920, which amount was later paid in full. He also claimed $5,006.39 additional for alleged extra work; this was partially compromised by defendant consenting to pay $407.93 in settlement of items aggregating $1,208.31. The written agreement in regard to this adjustment, which was dictated in defendant's presence, specified that "The items not included in this settlement, and which are left open for future adjustment or litigation, without prejudice to the rights of either party with respect thereto, are" as detailed in the paper; they amounted to $3,798.08. Defendant left the conference before the agreement was written, but asked that it be sent to him for execution. Later he returned it unsigned, and refused to pay the $407.93; plaintiff then sued in the municipal court to recover this amount; defendant denied liability and set up a counterclaim for $408, because of alleged defective work in the same operation. The case was heard and decided without a jury; the court, in a written opinion, held that defendant had agreed as alleged, but did not consider the counterclaim at all, in effect determining, under the rule of Hennis v. Page, 3 Wharton 275, and Mutual Trust Co. v. Parrish, 276 Pa. 422, 425, that, by the agreement to pay the compromise sum for certain items, and to leave "open for future adjustment or litigation" the others in dispute, defendant stipulated he would not interpose a set-off against payment of the amount specified in the settlement. Upon no other reasonable theory can we explain the trial judge's failure, in his written opinion, to refer to the counterclaim. Judgment was entered for plaintiff, for the full amount claimed in that suit, and it was paid by defendant.
Plaintiff then brought this present action to recover the $3,798.08 left open at the time of the partial settlement. Defendant denied liability for any part of it, and counterclaimed for $516.34 for defective work. The jury found a verdict for defendant, without awarding him any sum of money; judgment was entered thereon, and plaintiff appealed.
Appellant's statement of the question involved, (which limits the scope of the appeal: Furman v. Broscious, 268 Pa. 119; Hanlon v. Davis, Director General of Railroads, 276 Pa. 113), is as follows "Where in an earlier proceeding between the same parties, defendant has used for set-off certain items growing out of plaintiff's alleged defective performance of a completed building contract, can defendant in this latter proceeding, between the same parties but on a different cause of action, use for set-off and counterclaim the same and additional items growing out of plaintiff's alleged...
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Cleary v. Quaker City Cab Co.
... ... is all that we are required to deal with (Kramer v ... Standard Steel Car Co., 281 Pa. 348, 352; Thompson's ... Est., 282 Pa. 30, 39; Singer v. Pilton, 282 Pa. 243, ... 246; Roberts v. Cauffiel, 283 Pa. 64, 70); but it ... may not be amiss to state that, on examining the whole ... ...
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Sauber v. Nouskajian
...or res judicata: Steel v. Levy, 282 Pa. 338; Rhodes v. Terheyden, 272 Pa. 397; Hartman v. Inclined Plane Co., 23 Pa.Super. 360; Singer v. Pilton, 282 Pa. 243. decision is contrary to Equity Rule 66. Nonsuit is no bar to a second action: Moreland Twp. v. Gordner, 109 Pa. 116; Detrick v. Shar......
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Com., Dept. of Transp. v. Pace
...be sued upon separately, and recovery of judgment for one such cause will not bar subsequent actions upon the others. Singer v. Pilton, 282 Pa. 243, 127 A. 611 (1925). When part of a contract consists of several distinct items and the price to be paid is apportioned, the contract is severab......
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Borough v. Upper Yoder Township
...the questions involved; all others which were or might have been raised need not be considered (Furman v. Broscious, 268 Pa. 119; Singer v. Pilton, 282 Pa. 243), and will not where, as here, the answering of them in the way appellant desires, would not lead to a just determination of the ul......