Stradley v. Bath Portland Cement Co.

• Decision Date: 25 April 1910
• Docket Number: 408
• Citation: 77 A. 242,228 Pa. 108
• Parties: Stradley v. Bath Portland Cement Company, Appellant
• Court: Pennsylvania Supreme Court

77 A. 242

228 Pa. 108

Stradley v. Bath Portland Cement Company, Appellant

No. 408

Supreme Court of Pennsylvania

April 25, 1910

Argued March 22, 1910

Appeal, No. 408, Jan. T., 1909, by defendant, from order of C.P. No. 2, Phila. Co., Sept. T., 1909, No. 3,432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin F. Stradley v. Bath Portland Cement Company. Affirmed with modification.

Assumpsit to recover monthly installments of salary. Before SULZBERGER P.J.

Rule for judgment for want of a sufficient affidavit of defense.

The facts appear by the opinion of the Supreme Court.

Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

We eliminate the four months' salary with interest amounting to $1,751.28, and affirm the judgment in favor of the plaintiff for $2,984.52.

Tustin & Wesley, for appellant. -- Each action for installments due must include every installment due when suit is commenced Seed v. Johnston, 63 A.D. 340; Lorillard v. Clyde, 122 N.Y. 41 (25 N.E. Repr. 292); Jex v. Jacob, 7 Abb. N. Cas. 452; Underhill v. Collins, 133 N.Y. 685 (31 N.E. Repr. 628); Morrison v. De Donato, 76 Mo.App. 643; Stiles v. Himmelwright, 16 Pa.Super. 649; Smith v. Lumber Co., 142 N.C. 26 (54 S.E. Repr. 788); Logan v. Caffrey, 30 Pa. 196; Secor v. Sturgis, 16 N.Y. 548; Burritt v. Belfy, 47 Conn. 323.

There is no doubt that the law of Pennsylvania has always been that a judgment entered not on the merits but by reason of technical defects either in the pleadings or the form of the suit was not res adjudicata, such as judgment for costs, judgment of nonsuit and the like: Levison v. Blumenthal, 25 Pa.Super. 55; Place v. Landsdale, etc., Turnpike Rd. Co., 8 Montg. County L.R. 63.

Alex. Simpson, Jr., with him Bernard J. O'Connell, for appellee, cited: Allen v. Textbook Co., 201 Pa. 579; Allen v. Engineer's Co., 196 Pa. 512; Lorillard v. Clyde, 122 N.Y. 41 (25 N.E. Repr. 292); Hess v. Heeble, 6 S. & R. 57; Sterner v. Gower, 3 W. & S. 136.

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The court below entered judgment for want of a sufficient affidavit of defense.

The plaintiff first sued the defendant on April 19, 1909. The statement was filed April 28, 1909, and claimed $416.66, for one month's salary from October 28 to November 28, 1908, averring: "On or about the 28th day of October, 1907, in pursuance of a verbal agreement with the board of directors of the defendant company, the plaintiff was elected vice president of the said company at a salary of $5,000 a year; which said salary was to be paid in monthly installments; and as such officer of said company he was to perform such duties as the said board of directors should assign to him. That in pursuance of the said agreement the plaintiff entered upon the performance of the said duties, which for the year in question were those of general sales-agent. That on or about the 28th day of October, 1908, the plaintiff was re-elected to said office, and the said board of directors assigned to him for the ensuing year, in addition to his regular duties as vice president, the office of general manager, etc., at Bath, Pa." On April 28, 1909, the defendants entered an appearance, and on May 27, 1909, the plaintiff took judgment for want of an affidavit of defense; which judgment was paid by the defendant on June 9, 1909. After this the plaintiff brought a second suit to recover $4,583.26, eleven months' salary from November 28, 1908, to October 28, 1909. In this case he filed a statement of claim containing precisely the same averments as those just quoted from the statement in the former action, in addition to which he averred: "That he performed his duties up to the eighth day of February, 1909, when he was wrongfully and maliciously prevented by the defendant company from the further performance of the said duties, and was discharged by the said company from the said employment" and, "The said plaintiff has continued from the said time ready and willing at all times to perform said duties or such duties as might be assigned to him." He also averred the facts as to the former action, and that the judgment in that suit "stands to this day unappealed from and unreversed."

The defendant filed an affidavit and a supplemental affidavit of defense, in which it set up as a defense to the whole claim: that there was no contract for the employment of the plaintiff or for his election to office when he was elected second vice president of the defendant company on October 28, 1907, with an admission that his salary was then fixed by the board of directors at $5,000 a year; that when the plaintiff was elected vice president on October 28, 1908, no salary was fixed, and at that meeting he with other members of the board of directors delegated to the executive committee of the board the power and authority to fix the salaries of all the officers of the company; that on October 29, 1908, the executive committee concluded that no salary was to be paid to the plaintiff as vice president, and elected him to the office of manager at Bath at a salary of $250 per month, and so notified him by letter on December 1, 1908; that the plaintiff held his office as vice president and general manager until February 8, 1909, when he severed his connection with the company; that the board of directors never made any agreement with the plaintiff to pay him $5,000 a year, and that the plaintiff was never elected to the office of vice president in pursuance of any contract, but held the office at the pleasure of the board of directors; and finally, a general denial that the plaintiff was wrongfully and without cause prevented by the defendant from the further performance of his duties, or that he was discharged from his employment, "as in said statement of claim averred," and an averment that "the said plaintiff, being unwilling to accept $250 per month salary as manager of the Bath office, and being unwilling to serve as vice president without compensation, he withdrew from the service of the defendant company on or about the 8th day of February, 1909, as in the said statement of claim averred, but the defendant denies that on said day, as in said statement of claim averred, the plaintiff was wrongfully and maliciously prevented from a performance of the said duties assigned to him, as second vice president. The defendant avers that the said plaintiff was discharged from his employment as manager of the Bath office on or about the 8th day of February, 1909." The averments as to the payment of salary are extremely vague, but it is not averred that any part of the salary sued for has been paid, or even that the salary at the rate of $250 per month was paid up to February 8, 1909.

A second defense was that by bringing suit on April 19, 1909, for only one month's salary ending November 28, 1908, the plaintiff waived all other salary due between the latter and the former dates, and that he is now estopped from claiming the salary so waived.

Both of these defenses were adjudged insufficient and judgment was entered for $4,735.80, the full amount of the claim with interest. An appeal has been taken by the defendant.

The court below states: "As to the first defense, it is clear that under ordinary circumstances the denial as made by the affidavit of defense would be sufficient to send the case to a jury. The plaintiff, however, contends that such an effect cannot follow here, because the existence of the contract declared on and its terms are res adjudicata. The defendant denies this effect to the judgment in the previous case because it was a judgment procured without an issue of fact, or law, being taken for want of a sufficient affidavit of defense. There never having been any denial of the plaintiff's averments, it is contended that the binding effect of the judgment is limited only to the matter or thing in controversy in that case, namely, the one month's salary; that while no question could ever be raised again as to that, yet as to any other month's salary, or any other terms of the contract, the question remains open and undecided, because it has never been contested." In disposing of these contentions the learned judge of the common pleas filed an opinion in which he amply sustained his rulings on this branch of the case and we cannot do better than to quote from and adopt part of that opinion: "The question can no longer be said to be arguable. It is settled public policy that validity must be attributed to judgments of courts, and that when a matter has once properly passed to final judgment, it has become res judicata, and the same matter between the same parties cannot be reopened or subsequently considered, save only by a direct appeal for reconsideration to the tribunal that gave the first judgment, or by proceedings for reversal had in an appellate court. So long as a judgment stands unreversed and unappealed from it may not be questioned in any other case. And the circumstance that there was no legal contest in reaching the judgment does not impair its effect. The modern decisions in England and in this country are at one on this point. In South American and Mexican Company v. Bank of England (L.R. 1895, 1 Chancery, 37, 44) Sir Roland Vaughn WILLIAMS stated the doctrine in these words: ...