True-Hixon Lumber Co. v. Thorne

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: True-Hixon Lumber Co. v. Thorne, 158 So. 909, 171 Miss. 783 (Miss. 1935)
• Decision Date: 14 January 1935
• Docket Number: 31228
• Parties: TRUE-HIXON LUMBER CO. v. THORNE

158 So. 909

171 Miss. 783

TRUE-HIXON LUMBER CO. v. THORNE

No. 31228

Supreme Court of Mississippi

January 14, 1935

(In Banc.)

1 EVIDENCE.

Jury is not bound to accept in its entirety evidence for either side, but may make up verdict as composite of evidence for both sides.

2. JUDGMENT.

Party relying upon judgment as being conclusive upon issue in subsequent suit between same parties must show that precise issue relied on was actually determined in his favor in former suit.

3. JUDGMENT.

Judgment which may have resulted from determination of one or more separate issues does not constitute adjudication as to any issue unless it clearly appears from record in former case that particular issue as to which rule of res judicata is invoked was actually adjudicated.

4. JUDGMENT.

Judgment for employee in suit for breach of employment contract held not res judicata in subsequent suit of issue that employee had contract for period during which employer was constructing planing mill, where jury in former suit might have accepted employee's evidence that contract was for stipulated sum per day straight time so long as he remained in employment, and also employer's evidence that employer had right to terminate employment at any time.

5. APPEAL AND ERROR.

Positive authority of opinion of appellate court is coextensive only on facts on which it is founded.

6. APPEAL AND ERROR.

Where, on second appeal, additional state of facts materially pertinent to decision on second appeal is shown of record, former determination is not controlling, since on second appeal court decides according to record then before it, and not upon record of previous appeal.

7. APPEAL AND ERROR.

Supreme Court held not precluded from holding that judgment for employee in suit for breach of employment contract was not res judicata in subsequent suit of issue as to existence of employment contract, because of prior contrary holding, where neither pleadings nor evidence in first suit were made part of record on appeal which resulted in contrary holding.

APPEAL from the circuit court of Lafayette county HON. THOMAS E. PEGRAM, Judge.

On suggestion of error.

Suggestion of error overruled, former judgment of reversal reinstated, cause remanded for new trial, and former opinion withdrawn. For prior opinion, see 155 So. 181.

Suggestion of error overruled, and reversed and remanded.

L. C. Andrews, of Oxford, for appellant.

A contract generally single, and a breach of it affords but one cause of action, but this court is aligned with those jurisdictions which hold that where wages are to be paid in installments during the execution of the contract, several suits may be maintained for accrued wages.

Thorne v. True-Hixon Lbr. Co., 148 So. 388, 167 Miss. 266.

Before plaintiff may split his cause of action and continue to sue defendant for accrued wages growing out of the alleged breach of the contract, the judgment recovered by plaintiff in cause 5981, must be held to have established the contract.

The judgment established a contract different from the one alleged by plaintiff. It was for one month's wages thereby establishing that plaintiff had a contract for one month or for month to month. The damages awarded were for the breach of one month's salary. The situation is the same as if the judgment had expressly adjudicated that the recovery was not on the contract alleged, but on an entirely different agreement.

6 L. R. A. (N. S.) 60, note VIII.

Plaintiff cannot now sue for damages for a breach of contract, which in a former suit where the parties and issues were the same the judgment established that no such contract existed between the parties.

Williams v. Luckett, 77 Miss. 394; Gross v. Todd et al., 94 Miss. 168, 47 So. 801.

There can be no further recovery by the plaintiff under the facts or law.

Fidelity & Guaranty Co. v. Tate County, 114 Miss. 1, 74 So. 769; Armfield v. Nash, 31 Miss. 361; Williams v. Luckett, 77 Miss. 394, 26 So. 967.

Lester G. Fant, Sr. and Jr., of Holly Springs, for appellant.

The action was barred by res judicata of the material fact.

Thorn v. True-Hixon Lbr. Co., 167 Miss. 266.

The judgment which the plaintiff recovered was not a judgment establishing his cause of action on the contract on which he sued. On the contrary, it was a judgment defeating his cause of action upon a contract for a continuous period, because it awarded him as damages for the breach only one month's wages. It is essential to support this judgment, which cannot now be questioned, to say that it was a judgment establishing that the plaintiff had a contract for employment, not for a continuing period of time, but for month to month.

In the present case the plaintiff below was suing on his contract for a continuing period of time. This is the same issue that was presented in the previous case, and the verdict of the jury and the judgment of the court was that he did not have this contract. Aside from any question of splitting the cause of action, it is submitted that his present action is barred by that judgment which conclusively establishes the material fact of the nonexistence of the contract.

Williams v. Luckett, 77 Miss. 394; Gross v. Todd et al., 94 Miss 168, 47 So. 801; Davis v. Hart, 66 Miss. 642, 6 So. 318.

If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself.

15 R. C. L. 977, par. 451.

There can be no collateral attack and no question of the propriety of the judgment in the first suit No. 5891, which awarded only one month's wages.

Duncan v. McNeill, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101; Sterling v. Sorrell, 130 Miss. 782, 100 So. 10; Bates v. Strickland, 139 Miss. 636, 103 So. 432.

It is submitted that this material fact was adjudicated between the same parties and is binding upon both of them.

34 C. J. 868, par. 1282.

James Stone & Sons, of Oxford, for appellee.

There is no question but what the contract involved in this case is a divisible contract.

Armfield v. Nash, 31 Miss. 361; Williams v. Luckett, 77 Miss. 394, 26 So. 967.

The parties in this case, the contract in this case and the breach of said contract in this case being exactly the same as in case. No. 5981, and the judgment in favor of plaintiff in case No. 5981, not having been appealed from, it is elementary that the judgment in No. 5981 is res adjudicata to the effect that the existence of the contract, the terms thereof and the breach thereof were as alleged in plaintiff's declaration in said cause No. 5981.

Argued orally by L. C. Andrews and L. G. Fant, Jr., for appellant, and by Phil Stone, for appellee.

Griffith J., McGowen, J., dissenting.

OPINION

Griffith, J.

On August 13, 1931, appellee filed his declaration against appellant alleging that on May 4, 1929, appellant had made a contract with him by which he was employed by appellant at a salary of four dollars and fifty cents per day, straight time for every day, except Sunday, payable weekly; said employment to continue during the period of the operation of the planing mill of appellant at College Hill Switch, in Lafayette county. That appellee, entered upon the performance of his contract and so continued until January 14, 1931, when he was wrongfully discharged by appellant. That appellant had not paid him the wages due him from September 1, 1930, to January 14, 1931, nor from January 14, 1931, to the date of the filing of his suit, and he sued for the total sum of one thousand three hundred seventy-seven dollars, alleged to be the aggregate amount due him for the two periods aforesaid.

To that action appellant filed its plea of the general issue, and a notice that although appellee was employed by appellant by the day at a stipulated amount, the terms of the employment were not as alleged by appellee in his declaration, and that under the said agreement appellant had a right to terminate the employment whenever appellant saw proper, and that appellant had exercised that right, and that appellant had paid appellee in full for every day's work done by him under the contract. The case was tried at the November, 1931, term of the circuit court, resulting in a verdict and judgment for appellee for one hundred seventeen dollars; and no appeal therefrom was taken, but the judgment was paid by appellant.

Subsequently, and on February 13, 1932, appellee filed another declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the first declaration, that is to say, from August 12, 1931, to February 12, 1932. To that action appellant filed a plea of res adjudicata averring that the judgment in the first case was a complete estoppel of any further suits growing out of the alleged contract between the parties. This plea was sustained by the trial court, and the second suit was dismissed, whereupon appellee appealed to this court, with the result that it was held here in Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388, that the first suit was not res adjudicata of the second, and the judgment was reversed.

Soon after the above-mentioned decision in this court, appellee filed a third declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the second declaration, that is to, say, from February 12, 1932, to June 24, 1933. When the ...