Sweeny v. Daugherty

1. Former adjudication! division or cause or action. A party cannot divide and recover in- parts, by different actions, a claim which in its legal nature, is indivisible. 2.-where claim is legally divisible. But a claim which is not in its legal nature single and entire, does not fall within the meaning of the rule. And where the owner of several and distinct pieces of property places the same in the hands of an agent, who disposes of and receives the money for the same, and it does not appear but that he sold the different pieces to different persons, and at different times, the owner in an action against such agent to recover the ■ money received by him for certain items of such property, will not be barred by a former recovery against defendant for money received by him from the sale of other items of such property not included in the last action; especially when it does not appear that plaintiff knew when he brought the former action that the articles sued for in the last one had been sold and the money received therefor by defendant.

Appeal from Linn District Court. Former adjudication : splitting causes oe action, etc. The question in the case is, whether the action is barred by a certain other recovery by plaintiff against defendant, before a justice of tbe peace. Tbe present action was brought in March, 1866, in the District Court of Linn county. The plaintiff claims $332.50 and interest, and alleges that the defendant, as plaintiff’s agent, sold and received the proceeds of the following property belonging to the plaintiff, viz.: One horse, six hogs and certain land, which he was to account for, but has failed and- refused to do so. The answer pleads in bar the recovery mentioned below in the findings of the court. The court to whom the cause was tried by consent, found the following facts: 1. About October, 1864, plaintiff and one Spooner were partners in the mercantile business, and were the owners, as such, of a stock of goods, also of a certain parcel of land and one house, the value of the undivided half of which, plaintiff seeks to recover in this suit. Also plaintiff owned in his right certain hogs, of the value of $47.50, and a horse of the value of $70, which he also seeks to recover herein. The value of the undivided half of the land and house are $150, and $67.50 respectively, as claimed in the petition. 2. At the date aforesaid, plaintiff constituted defendant, his agent, to sell and dispose of all the property mentioned above, both partnership and individual, and to account to plaintiff therefor. ' 3. The defendant took possession of all the property, as such agent, about October, 1864, and about December 25, 1864, and disposed of the same, and realized thérefrom fourteen hundred and some odd dollars, the exact amount over $1,400 not known. 4. About May, 1865, defendant paid plaintiff on account of such sales of said property dollars. 5. On the 21st day of July, 1865, plaintiff sued defendant before Justice Lookhaet, on an account of which the following is a copy: Dr. To amount received of J. C. Spooner,...... $962 00' Also to bill in store,....................... 118 00 Total, 1080 00 Cr. By cash,........................ $60 00 Cash by wife,.................... 600 00 Cash'by G-. Lockhart, ............ 100 00 Labor, ......................... 80 00 One sleigh, ..................... 12 00 Provisions furnished for hand,..... 128 10 980 10 Balance due, $99 90 And that said account was and is for a part of the moneys due plaintiff from defendant, on the sale of said property, to wit: for the balance due on the goods sold by defendant for plaintiff, and not including the property herein sued for. 6. That afterward, and on the 3d day of February, 1866, plaintiff in said suit recovered judgment against defendant before said justice, for the sum of $62.53 and costs, taxed at $7.55, and on appeal to this court said judgment was affirmed, and is still in full force and effect. 7. That the sum claimed by plaintiff was received by defendant for plaintiff’s use, and has not been paid or accounted for in any manner, and is still due plaintiff unless the same is barred, and the plaintiff estopped by said suit above named. Whereupon the court finds, as a conclusion of law, from the foregoing facts (with a serious doubt), that the transaction is not such an entirety as comes within the familiar rule, that a party will not be allowed to divide bis cause of action, and that, therefore, the court finds for plaintiff against defendant in the sum of $885. Defendant excepted and appeals, and for error, assigns “ that the court erred in its conclusion of law that the cause of action was not barred by the recovery of the former judgment.” ■ For the money received by the defendant from the sale of plaintiff’s property, the plaintiff had an action against defendant, and but one cause of action, and he cannot sjMt it and bring separate actions thereon. Therefore the judgment rendered by the justice and affirmed in the District ■ Court, was a bar to this action. 2 Co wen’s Treatises, 167; 15 Wend. 557; 2 Allen (Mass.), 332; 1 Id. 47; 15 Johns. 432.