Wheless v. Serrano
| Decision Date | 27 November 1906 |
| Parties | WHELESS, Respondent, v. SERRANO, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. C. Orrick Bishop Judge.
AFFIRMED.
Judgment affirmed.
R. E Rombauer for appellant.
(1) Where one party, having several claims of the same character against another, fails to bring suit on any of such several claims, prior to the maturity of all, he makes his account open, running and entire, and cannot split it up into several causes of action. Morrison v. DeDonato, 76 Mo.App 643; Green v. Von der Ahe, 36 Mo.App. 394. (2) Where one party has an entire demand, as such demand is defined in point one of this brief, splits his cause of action, and institutes several actions thereon, in one of which he recovers judgment for part of his demand, such judgment constitutes res judicata of the entire demand, and may be plead in bar to any further action, on the residue of it. Funk v. Funk, 35 Mo.App. 246 and cases cited in support on page 254; Railroad v. Traube, 59 Mo. 362; Moran v. Plankinton, 64 Mo. 337.
Joseph Wheless pro se.
The trial court found, as matter of fact, that there was no such contract or agreement, as Serrano testified, that plaintiff would attend to all his business for a nominal consideration in return for such outside business as might come through the consulate. Hence there was no single contract of February 11, 1904, under which all these charges were mere items. The court found as a fact that each case was undertaken by plaintiff as a separate and distinct employment. Not one contract, but several. Grocer Co. v. Tagart, 60 Mo.App. 392; Hoffman v. Hoffman, 126 Mo. 497; Rudle v. Horine, 34 Mo.App. 621; Green v. Von der Ahe, 36 Mo.App. 397; West v. Moser, 49 Mo.App. 210; Railroad v. Traube, 59 Mo. 362; Stepp v. Livingston, 72 Mo.App. 180.
--Respondent, who is an attorney at law, filed two actions on the same day before a justice of the peace against appellant to recover for legal services. In his statement of his cause of action in what we will designate as case No. 1, he set out four items aggregating $ 499.25. One of the items was for a fee of $ 350 for services as attorney in the case of Serrano v. Miller-Teasdale Commission Company, an action instituted in the circuit court of the city of St. Louis to recover $ 2,000 for the tortious conversion of property. Another item was for a fee of $ 75 for services in the case of Serrano v. Greenguard, an action for $ 4,500, instituted in the St. Louis Circuit Court for personal injuries to one A. P. Serrano, appellant's brother. The third item was for cash advanced to pay for printing briefs on the appeal of the case of Serrano v. Miller-Teasdale Commission Company. The fourth item was for $ 50 for an opinion on the title of some mining property. The statement filed in this case, which we will designate as case No. 2, consisted of a single item and was for a fee of $ 500 for legal services rendered by respondent as attorney for appellant, Rafael P. Serrano, in an action instituted against him by Everett P. Teasdale, in the circuit court of the city of St. Louis, to recover $ 20,000 damages for malicious prosecution. In case No. 1, respondent got judgment against appellant for $ 249.25 in the justice's court. On appeal that judgment was affirmed in the circuit court and subsequently paid. In case No. 2, the judgment in the justice's court went in favor of appellant, but the cause having been carried to the circuit court and there tried anew, judgment was awarded to respondent for $ 250, from which judgment the present appeal was prosecuted.
The defense to the action was twofold. The defense on the merits was that respondent being an attorney engaged in the practice of law in the city of St. Louis, and appellant the consul of the Republic of Mexico in said city, they had agreed, prior to the performance of any legal services by respondent, that if the consul would turn over to respondent such legal business as he controlled by virtue of his office respondent would attend to all his individual business for a nominal fee. The other defense was, in effect, a plea of prior adjudication, and that the present cause of action having accrued when case No. 1 was filed in the justice's court, and as it covered the same character of services embraced in the statement filed in case No. 1, respondent was bound to include the item covered by the present case in the other one; was precluded from splitting his demand and, hence, the payment of the judgment in case No. 1 was a bar to his recovery in this case. There was a conflict of evidence in regard to the defense on the merits and it is stated in appellant's brief that the court, sitting as a jury, having found the issues of fact for respondent under proper declarations of law relating to those issues, they are not to be considered on the appeal and part of the evidence bearing on them is omitted from the record. Some reference to such evidence as we have before us is necessary to a correct disposition of the defense of former adjudication. Appellant testified that he made the arrangement with respondent to attend to appellant's individual business for a nominal fee at the date of the institution of the case of Serrano v. Greenguard, or on February 11, 1904; that there never was any other contract and all respondent's legal services, were rendered pursuant to the arrangement then made. Respondent contradicted this testimony; swore that Serrano had sent him consulate business for two or three years, but with no understanding that Serrano's personal affairs of a legal sort were to be looked after by respondent for a nominal fee, because of the consulate business to be thrown to respondent; that Serrano employed him in the case of Serrano v. Miller-Teasdale Commission Company after it had been pending a year and without referring to any other business and that respondent brought the suit of Serrano v. Greenguard at appellant's request. It was further shown Serrano requested Wheless to enter appearance in the suit of Teasdale v. Serrano, which was successfully defended. No fee was agreed on in either of these cases; and in the two actions instituted by respondent to recover for his services he obtained judgment quantum meruit. The learned circuit judge who tried this case declared the law relating to the defense of the alleged splitting of respondent's cause of action to be, that if the court found from the evidence Serrano made separate and distinct contracts of employment with respondent in each of the matters referred to in the evidence, and the...
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