Smith & Gottlieb Inc. v. Cheatham.

Decision Date21 December 1942
Docket NumberNo. 6.,6.
Citation31 A.2d 676
PartiesSMITH & GOTTLIEB, Inc., v. CHEATHAM.
CourtD.C. Court of Appeals

OPINION TEXT STARTS HERE

Appeal from the Municipal Court for the District of Columbia, Civil Division, Small Claims Branch.

Action for breach of contract by L. J. Cheatham against Smith & Gottlieb, Inc. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with instructions.

Samuel F. Beach, of Washington, D. C. (James W. Gill, of Washington, D. C., on the brief), for appellant.

N. Meyer Baker, of Washington, D. C., (John F. Lillard, of Hyattsville, Md., on the brief), for appellee.

Before RICHARDSON, Chief Judge, HOOD, Associate Judge, and McMAHON, Judge of Municipal Court for District of Columbia.

RICHARDSON, Chief Judge.

On June 28, 1939 appellee purchased from appellant certain premises in Takoma Park, Maryland. A written contract of sale of that date provided in part: ‘that assessments for improvements completed prior to the date hereof, whether assessment thereon has been levied or not, shall be paid by the seller or allowance made therefore at the time of transfer.’

It is conceded that prior thereto improvements consisting of water main and sewer, had been completed by the Washington Suburban Sanitary Commission. Under Maryland law the cost of this improvement is imposed upon the property as a benefit charge and constitutes a lien thereon. Baker v. Smith & Gottlieb, Inc., App.D.C., 132 F.2d 18 decided November 30, 1942. It could have been discharged in the present instance (at the time of the transfer) by a payment of $421.44; otherwise it must be paid in annual intallments of $17.68 over a period of fifty years, the increase in amount representing interest cumulated and prorated.

When the transaction of sale was closed and the property transferred to the purchaser the seller did not pay or make allowance for this assessment. Thereafter he disclaimed liability. Appellee then instituted an action, No. 397,249, in the Municipal Court for the District of Columbia, claiming the sum of $421.44 for breach of the contract.

That action was tried by the court without a jury. It resulted in a general finding and judgment for the plaintiff on September 19, 1941 for the sum of $17.36.

Appellee filed a motion for new trial, alleging that the finding was contrary to the evidence, contrary to law, and that improper evidence had been admitted. The motion was denied.

On April 30, 1942 appellee, as plaintiff, filed a second suit against appellant in the Small Claims Branch of the Municipal Court for the District of Columbia for the sum of $35.72 ‘for annual sewer and water assessment for the years 1941 and 1942 which the defendant assumed to pay on the property’ (describing said premises).

Upon the hearing of this case the payment by appellee of two installments of the assessment amounting to $17.36 each was admitted. Each party relied upon the stenographic record and the judgment in Case No. 397,249. No additional evidence was offered. Appellee's position was, and now is, that in the prior suit there had been an adjudication of his right to be reimbursed subsequent annual payments of the assessment. Appellant by his plea to the complaint claimed that the judgment in the former suit constituted an estoppel against a second action for breach of the contract, and on this defense he now relies. Appellant's plea was denied by the trial court and judgment was entered for the amount claimed. From this judgment we allowed an appeal.

In the reporter's transcript, it appears that defendant in the first action denied liability for any part of the charge for improvements upon various grounds. Also that he claimed that appellee had not been damaged beyond the $17.36 paid by him, as he might ‘move away tomorrow’ or sell the property and not pay the $404.00 then due to redeem the amount (R. 42, 43).

The judgment record in Case No. 397,249 does not show the basis for the allowance of the sum of $17.36. The trial judge in the first action advised the judgment presiding at the trial of the present case ‘that the finding in that case was limited to $17.36, only for the reason that the accrued assessments had amounted to that amount and no more, at the time of the findings in that case.’

We express no opinion as to the legal effect of this statement as we do not regard it as material to our decision.

Here, as in Baker v. Smith & Gottlieb, Inc., supra, appellee treated the disclaimer of liability and the failure to pay as a total breach and sued for the total damage sustained-the cost of removing the lien as of that date. This was held to be a valid cause of action by the U.S. Court of Appeals. In the case before it that court upheld the contention that the entire cost of the improvements was recoverable in a single action for damages for breach of the contract. We regard this decision as conclusive upon us of the fact that as plaintiff in Case No. 397,249 appellee was entitled to recover an amount sufficient to indemnify him for future installments of the assessment. That the trial court in appellee's first action adopted a different view and misconstrued his measure of damage is immaterial. His remedy was by appeal from that judgment; not in the filing of a second suit.

In Walton v. Ruggles, 180 Mass. 24, 61 N.E. 267, the court through Mr. Chief Justice Holmes said: ‘The defendant's contract was entire and was broken before the date of the writ. All the damages that the plaintiff ever is to recover he must recover now.’

The suit there was for breach of an agreement to pay an installment mortgage note on which plaintiff, vendor of the property, remained liable. The defense was that plaintiff, at the time of suit, had paid but one installment. The...

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5 cases
  • Lee v. Dunbar
    • United States
    • D.C. Court of Appeals
    • April 14, 1944
    ...D.C.Mun.App., 36 A.2d 352, 353. See also Jemison v. Metropolitan Life Ins. Co., D.C.Mun.App., 32 A.2d 704, and Smith & Gottlieb, Inc., v. Cheatham, D.C.Mun.App., 31 A.2d 676. ...
  • Hankin v. Spilker
    • United States
    • D.C. Court of Appeals
    • March 10, 1950
    ...Atlantic & Pacific Tea Co. v. West, 56 App.D.C. 103, 10 F.2d 898; Gill v. Gill, 79 U.S.App.D.C. 357, 147 F.2d 154; Smith & Gottlieb v. Cheatham, D.C.Mun.App., 31 A.2d 676; Scholl v. Tibbs, D.C.Mun.App., 36 A.2d 352. 4. Crompton & Knowles Loom Works v. Brown, 28 Misc. 513, 59 N.Y.S. 556, 557......
  • Federal Deposit Ins. Corp. v. Hadid
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 23, 1991
    ... ... Investment Co., Inc. (P.S. Investment) in 1986, NBW accepted two promissory notes. The one ... ...
  • Yuen v. Durham
    • United States
    • D.C. Court of Appeals
    • March 5, 1985
    ...claim permits res judicata to be successfully relied on if the remainder is sued on later"). He also cited Smith & Gottlieb, Inc. v. Cheatham, 31 A.2d 676, 677 (Mun.App.D.C.1942) for the proposition that the fact the trial court misconstrued the measure of damages is immaterial as a defense......
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