Vanuxem v. Burr

• Decision Date: 08 May 1890
• Citation: 151 Mass. 386,24 N.E. 773
• Parties: VANUXEM et al. v. BURR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 386

24 N.E. 773

VANUXEM et al. v. BURR.

Supreme Judicial Court of Massachusetts, Suffolk.

May 8, 1890

May 8 1890

HEADNOTES

COUNSEL

Warren &amp Brandeis and W.H. Dunbar, for plaintiffs.

Hutchins & Wheeler, for defendant.

OPINION

HOLMES J.

This is an action upon a promissory note made by the defendant. The only defense is that, in another action upon a contract to procure the defendant's mother's indorsement to this note and to two others, the plaintiffs, since the present suit was brought, have recovered judgment against the defendant for damages assessed, by agreement, at a sum equal to the amount due on the three notes. If this judgment is not a bar, it is admitted that the plaintiffs are entitled to recover.

The two contracts were both in existence at the same time. They were distinct from each other in form, as appears from the statements of them. They were also distinct in substance. Supposing that the defendant could do no more to bind himself personally to pay the money to the plaintiffs than he did by making the note, still his promise to get the security of an indorser affected other consequences besides his personal payment, or his personal obligation to pay. Its performance or breach affected the plaintiff's power to discount the note before it was due, and the probability of their getting payment from another whom the defendant might be able to persuade to indorse, when he could not or would not induce her to pay if she had not indorsed. As the contracts were both in existence and were different, and as they were both broken, it is plain that the plaintiffs have had two different causes of action, and there is no need to refer to the tests of difference which have been laid down in the books. Eastman v. Cooper, 15 Pick. 276, 286; Lechmere v. Fletcher, 1 Cromp. & M. 623, 636. The question arises solely on the effect of the judgment.

What we mean when we say that a contract is legally binding is that it imposes a liability to an action unless the promised event comes to pass, subject to whatever qualifications there may be to the absoluteness of the promise. Generally, if a man is content to make two legally binding contracts, he consents to accept the legal consequence of making two instead of one viz., liability to a judgment upon each unless he performs it. It would be anomalous if a judgment without satisfaction upon one cause of action were held to be a bar to a suit upon another and distinct cause of action. No doubt two contracts may be such that performance of one of them, or satisfaction of a judgment upon one of them, would prevent a recovery upon the other, either altogether, or for more than nominal damages. In this commonwealth the decisions have gone somewhat further than elsewhere in treating satisfaction of one judgment as an absolute bar to another action. Gilmore v. Carr, 2 Mass. 171; Savage v. Stevens, 128 Mass. 254. But instances are too numerous and familiar to need extended mention, where the mere recovery of a judgment is held no bar to another action, although the satisfaction of it would be. Simonds v. Center, 6 Mass. 18; Porter v. Ingraham, 10 Mass. 88; Elliott v. Hayden, 104 Mass. 180; Byers v. Coal Co., 106 Mass. 131, 136. This principle is applied not only to actions against different parties, such as the maker and indorser of a note, or joint tort-feasors, but to actions against the same individual when he has given different obligations in respect of what is in substance the same debt. Thus judgment upon a note given by an obligor as collateral security for his bond is no bar to a subsequent action upon the bond. Lord v. Bigelow, 124 Mass. 185, 189; Drake v. Mitchell, 3 East, 251; Lechmere v. Fletcher, 1 Cromp. & M. 623; Fairchild v. Holly, 10 Conn. 474; Davis v. Anable, 2 Hill, 339; Burnheimer v. Hart, 27 Iowa, 19. See Greenfield v. Wilson, 13 Gray, 384; Moore v. Loring, 106 Mass. 455; Bank v. Jefferson, 138 Mass. 111; U.S. v. Cushman, 2 Sum. 426, 440; Stillwell v. Bertrand, 22 Ark. 379; Insurance Co. v. Babcock, 8 Abb.Pr. (N.S.) 256.

The principle of the cases last cited is decisive of the one at bar....