Orendorff v. Utz

Stewart, J.',

delivered the opinion of the Court.

The suit in this case was brought against Francis H. Orendorff, administrator of John Orendorff, alleging sundry breaches of the bond of the said John, given to the plaintiff, David Utz, to indemnify him against any outstanding debts of the firm of Orendorff & Utz, of which David Orendorff and the plaintiff were the members.

The plaintiff having paid certain claims, alleged to he due by the firm, had, by a former suit against the present defendant, recovered judgment for damages for breaches of the same bond.

Since that recovery, the plaintiff having paid other claims alleged to be due by the said firm, the present suit was instituted for their recovery, the non-payment of which by the defendant was alleged as a breach of the same bond.

*302 It was conceded, that no evidence was offered in the first suit, in regard to .the breaches alleged in the existing action.

The first and second pleas of the defendant were the former recovery, to which the plaintiff replied, nul fiel record. The seventh plea alleges the former suit to have been brought on the same bond, and that the bond sued on, as the cause of action in that suit, is the same as in this ; to this plea the plaintiff demurred.

We shall consider the first, second and seventh pleas together, as they are the material defences, and rest upon somewhat analogous grounds.

The other pleas merely traversed the various alleged breaches.

In the first suit, the plaintiff could only recover upon the breaches of the bond declared on therein, for the payment of any debts of the firm referred to therein.

If the plaintiff, subsequent thereto, paid other debts of the firm, their non-payment by the defendant constituted a different breach.

The suit was for the recovery of damages for the breach of the bond.

The bond, per se, was not the matter in issue, but the breach thereof.

The breaches in the two suits being different, although arising out of the same bond of indemnity, it could not be justly contended, that the recovery in the present suit would he for what had been recovered in the former.

There can be no doubt, therefore, that as to the issues made by the first and second pleas, the inspection of the record of proceedings in the two suits, showed that the former suit was for a different breach, and there was no error in the ruling of the Circuit Court as to these pleas.

The seventh plea fails to state, as a material averment, that the breaches alleged in the first suit were the same as in this. Upon bonds for the performance of some duty, *303 there is nothing in action until there is some breach of the condition — the breach of the bond being the ground or cause of action. Thruston vs. Blackiston, 36 Md., 501 .

Assuming every allegation of the plea to he true, it did not follow that the plaintiff was barred of recovery.

Several suits on the same bond, for different breaches, may be maintained.

The plea was therefore defective and nugatory, and the Court committed no error in sustaining the demurrer thereto.

There was, in fact, no judgment in the former suit, for the penalty of the bond, but merely the recovery of damages for the breaches, which constituted no defence to this action, if it referred to a different breach of the bond.

The authorities are clear, that the judgment pleaded as a former recovery, must he for the same cause of action; although it will he presumed that the plaintiff recovered all that he could then recover in that action. The principle of res adjudícala operates as a bar to a second suit, when it is shown, that 'the former recovery was between the same parties, or their privies, and the point in controversy the same in both cases, and determined upon the merits. Hughes vs. United States, 4 Wall., 232 ; Todd vs. Stewart, 9 Q. B., 759, (58 Eng. Com. Law, 759;) Lord Bagot vs. Williams, 3 B. & Cr., 235; Phillips vs. Berick, 16 Johnson, 137 ; 16 N. Y., 548 .

But the former judgment constitutes no defence, if it be shown to have related to a different breach of the same contract. Bristowe vs. Fairclough, 1 M. & G., 143; Florence vs. Drayson, 1 C. B., (N. S.,) 584; Butler vs. Wright, 2 Wendell, 369 .

Nor will such former judgment he a bar, if the action failed because prematurely brought. Palmer vs. Temple, 9 Ad. & Ell., 521. Whilst the Statute of 8 and 9 Will. III, ch. 11, sec. 8, may authorize the entry of a judgment for the penalty of the bond, to stand as security for the *304 breaches, which may be recovered by scire facias thereon, it does not, when taken in connection with the provisions of the 63rd sec. of Art. 15 of the Code, prevent repeated actions on the bond, as breaches thereof may occur.

The Statute 8 and 9 William, which authorizes the scire facias on the judgment, for any subsequent breaches, to issue, where there has been a judgment for the penalty of the bond for a breach, has been modified by the provision of the Code, which treats the sum really due as the true debt secured by the penal bond, and so to be pleaded and allowed. That statute was intended to relieve the defendant from resort to a Court of equity, against the recovery of the penalty of the bond for any breach, however small. The provision of the Code renders the intervention of a Court of equity unnecessary.

We find no error in the other rulings on the exceptions to the testimony, or in regard to the respective prayers.

The defendant could not be a witness, where the other party to the contract was dead.

The fifth plea, relied upon as a defence, was the failure of the plaintiff to sue upon the bond, or the claims for the breaches thereof, within nine months after their rejection by tbe administrator.

The 108th sec. of Art. 93 of the Code, has no reference to a possible or contingent claim that might arise, by further breaches of the bond.

No liability had been incurred at the time of the demand upon the administrator. Any claim was entirely contingent, and could not delay the settlement of the estate, and was not barred by the limitation prescribed in that section, because of its rejection by tbe administrator, and failure of the plaintiff to bring suit for its recovery within the time prescribed therein.

The rendition of the judgment against the plaintiff by a competent jurisdiction, in favor of the parties having claims against the firm, and ■ their payment by the plain *305 tiff, in the absence of proof of fraud or collusion, was prima facie evidence, sufficient to establish the defendant’s liability,’ as the administrator aforesaid, under the bond of indemnity.

(Decided 26th March, 1878.)

Judgment affirmed.