Swedish American Nat'l Bank v. Dickinson Company
| Decision Date | 19 November 1896 |
| Citation | 69 N.W. 455,6 N.D. 222 |
| Court | North Dakota Supreme Court |
Petition for a rehearing denied.
Counsel for plaintiff very earnestly press upon us the reconsideration of the point which seemed to us so clear that we did not discuss it at length. They concede the doctrine of merger, and the rule that the supplement bill must not embody facts creating an independent cause of action. Their whole contention ranges around the question, what is the real cause of action in this case? They insist that the debt is the primary right, and that this right, in connection with defendant's failure to respect it, constitutes the cause of action. Hence it follows, they urge, that that cause of action was not extinguished by the judgment, but exists today as much as ever it did, despite the fact that it has assumed a new form. There is much ambiguity on this subject. Jurists have found it difficult to define with precision the meaning of the phrase "cause of action." While it may be that this is a difficulty which inheres in the subject itself, and is therefore insurmountable, yet we do not consider that there should be, despite this fact, much controversy in a case like this as to the cause of action set up in the original complaint. If counsel's claim that the debt is the cause of action be sound, then there is no distinction between an action for services, for goods sold and for money loaned. In each case there is a debt. But in no two of these suppositive cases did the debt grow out of the same facts. In each of these cases the peculiar distinctive facts out of which the obligation arises are what constitute the cause of action, when coupled with the omission of the defendant to respect the plaintiff's rights thereby established. It is not the mere existence of a debt--an element common to them all--which constitutes the cause of action in either of these cases. If the debt were the cause of action, it would be unnecessary for the plaintiff to do more than aver in his complaint that the defendant was indebted to him in a specified sum. On this theory the same complaint would do for all actions belonging to these three classes. All that it is necessary for the pleader to do in any case is to set forth the facts constituting his cause of action. No one would think of stopping with a bare allegation of indebtedness; and yet this is all that is required if that indebtedness alone constitutes the cause of action. There is an element common to all causes of action, but it does not of itself constitute a cause of action. In every case there is present the fact that the defendant has neglected to observe his legal duty to the plaintiff. In an action at law to recover money, the cause of action is not simply the withholding of the money from the plaintiff by the defendant. In a sense, that may be said to be the legal wrong for which the law furnishes a remedy. But why is it a wrong of which the law takes cognizance? Because, and only because, by reason of certain antecedent facts, the plaintiff has become vested under the law with a right to demand the money. In seeking for one element of the cause of action, we must go back of the mere right to demand that the money claimed shall not be withheld, and ascertain what are the particular facts out of which that right springs. When we have discovered these facts, we have found out that which differentiates the particular cause of action from another, which, while showing, perhaps, an indebtedness of like amount, arises out of different circumstances. The cause of action is always disclosed by the answer to the inquiry: "How did the defendant become liable to be prosecuted by the plaintiff in this particular action?" It is true that a cause of action is not in cases of contracts complete until the defendant has failed to pay in accordance with his legal obligation. But the foundation for it is, in all such cases, laid before the default occurs; and in many instances this element of default is not a constituent part of the cause of action, as in tort cases, where the cause of action accrues the moment the wrong is committed. No one would speak of the failure of a slanderer of character to indemnify the person vilified as constituting the latter's cause of action. It is the slander which forms the plaintiff's cause of complaint in such a case. A plaintiff may have three different causes of action against the same defendant,--one for money loaned, one for goods sold, and one for services rendered. If in each case the withholding of the money alone is the cause of action, then all of the causes of action are identical in character. Would this be seriously claimed by any one?
We have used these few observations for the reason that the plaintiff's counsel seem to take the position that in this case the withholding of the money constitutes the cause of action. We will now turn to the plaintiff's contention that the debt, coupled with defendant's default, is the cause of action. If the mere fact that there is a debt independently of the circumstances out of which such debt arose, constitutes the cause of action in any case, then all legal distinctions are in this regard obliterated. The real essence of this contention is that, in all cases to recover money, it is the original obligation to pay, in connection with defendant's default, which constitutes the plaintiff's cause of action. If this be so, then a cause of action for libel is not affected by the fact that the defendant has, in full settlement of the claim, given his note for a certain sum of money. A note is not actual payment. The original obligation to pay damages lies at the basis of such note. It is, in substance, the same claim as the original claim for damages. So, it is after judgment upon the note. But the cause of action is not the same in each case. The statute of limitations as to each is different. The action for libel would have to be brought within two years after that cause of action accrued. The action upon the note would have to be commenced within six years after that new cause of action, resting upon different facts, accrued. And the action upon the judgment could be instituted within 10 years after that cause of action, based upon still different facts, had accrued. Rev. Codes § § 5200, 5201, 5203. Sections 5199 to 5201, Rev. Codes, differentiate a cause of action upon a judgment from the cause of action upon the claim upon which it was rendered. Under these provisions, an action upon contract must be brought within six years after that cause of action accrues; and an action upon a judgment rendered upon the same contract may be brought within ten years after that cause of action--that new and distinct cause of action--accrues. How can it be said that a cause of action upon a judgment accrues if no cause of action upon it does in fact accrue, but the old cause of action, for the original claim, still continues unaffected, and the judgment is only the same cause of action in another form? No judgment for money ever has been or ever can be rendered of which it cannot be as truthfully said as of this judgment in the case at bar that it is only the original claim in another form. Is it a fact that lawyers, judges, and codifiers have so long been mistaken in supposing that a distinct cause of action upon a judgment accrues when the judgment is rendered. The fact that the same debt lies at the foundation of distinct causes of action does not render them identical. If one who has borrowed money fails to pay it, a cause of action against him for money loaned exists. If his creditor thereafter takes the debtor's note in full payment, the old cause of action is extinguished, and a new one is created. The fact that there was an original debt is important only for the purpose of showing a consideration for the note. But an action upon such a note, under such circumstances, cannot be regarded as an action for money loaned. The original cause of action in the case supposed has been wiped out. If, in turn, a bond should be executed in payment of the note, the cause of action on the note would, in turn, be destroyed. If judgment should finally be recovered upon such bond, the cause of action upon the bond would likewise be extinguished. In the case supposed, there would exist, in succession, four distinct causes of action, all founded upon the same debt, which had at no time been paid, despite all the various changes which had taken place in the form of the evidences of such indebtedness. Would counsel for plaintiff seriously contend that in such a case there existed at all times only one cause of action,--the original cause of action, for money loaned? Pushed to its logical consequences, the doctrine contended for would make it necessary for a court to apply to an action upon the judgment here involved the statute of limitations applicable to the original cause of action, the six years statute of limitation. All must agree that no action upon the notes can be maintained after judgment. This is conceded. All will assent to the proposition that the action must be maintained upon the judgment. And yet if it is the same cause of action as that upon the notes, or for the original debt, the six-years statute of limitation governs. This will be true in all cases. The consequence will be that in every instance the statute of limitations applicable to the cause of action upon which the judgment is founded will govern in actions upon such judgment. Would counsel for plaintiff concede that their cause of action upon...
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