Broxton v. Nelson , 103 Ga. 327 ( 1898 )

Little, J.

The plaintiff entered into a contract with the defendant, whereby the former undertook to construct for the latter “ all the work included in the carpenter-work labor only on houses No. 1, No. 2, No. 3 and No. 4, on Highland and East avenues and Garfield place, Atlanta, Ga., according to plans and specifications for said houses,” made by a named architect; the defendant to “proceed with said work and every part and detail thereof in a prompt and diligent manner, and shall wholly finish the said work according to the drawings and specifications. . . The sum to be paid by the owner [defendant] to the contractor [plaintiff] for the said work only shall be $380.00 for No. 1 house; $407.00 for No. 2 house; $476.00 for No. 3 house, and $380.00 for No. 4 house; a total of $1,643.00 for the four houses. . . Such sums shall be paid by the owner to the contractor during the progress of the work on estimates made by the architect, which at no time shall exceed 75 per cent, of amount of work accepted by the architect. . . Said owner hereby promises and agrees with the said contractor to employ and hereby employs him to provide the labor and do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid,” etc.

1. This was an entire contract; and not divisible. Under its-terms'the plaintiff obligated himself to build four houses, and the defendant in turn obligated himself to pay a gross sum therefor. Story in his work on Contracts (5th ed., vol. 1, §26) says: “An entire contract is a contract the consideration of which is entire on both sides. The entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other. Whenever, therefore, there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire, and is not apportionable either at law or in equity.” In determining whether a contract is entire or severable, th’e criterion is to be found in the question whether the whole quantity, service or thing — all as a whole — is of the essence of the contract. If it appear that-the contract was \to take the whole or none, then the contract-would be entire. Clark, Con. 657. In the present case the work which the plaintiff undertook to do was definite and fixed, — to build four houses; and the defendant undertook to-pay a gross sum in consideration of such work. The amounts-named for each house were not separate undertakings on the-part of the defendant, but were component parts entering into- and comprising the gross sum agreed to be paid. The consideration to be paid was single and entire, and therefore the contract must be held to be entire, although the subject of the contract consisted of several distinct and wholly independent items. Branch v. Palmer, 65 Ga. 210; Miner v. Bradley, 22 Pick. (Mass.) 457. This being an entire contract, an action brought-thereon by either of the parties, and sued to judgment on the-merits, would bar any subsequent suit for any and all breaches which occurred prior to the commencement of the original action. “If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.” Civil Code, § 3793. Accordingly, in the case of Evans v. Collier, 79 Ga. 319, which was a suit upon an entire contract, the court ruled that all breaches of the contract up to the commencement of the former action, and the amount due to the plaintiff therefor, are conclusively presumed to have have been included in such suit. . See also Desvergers v. Willis, 58 Ga. 388.

2. Wherefore, it follows that the plaintiff having instituted in a justice’s court an action for a specified sum claimed to be due upon the contract sued upon in the present case (a copy of such contract being.set forth), and for other demands connected with said contract, all the alleged items of indebtedness sued for being stated and summed up in an account, the same being credited with various sums as partial payments thereof, and the plaintiff’s net demand in the case being for a “balance due on contract,” he could not thereafter maintain the present suit in the city court for alleged breaches of the same contract which occurred before the first suit was instituted, as against a plea of former recovery, setting out the pleadings in the justice’s court, from which it was apparent that the two causes of action were identical, or rather founded upon the same contract. Nor in the trial of the subsequent action in the city court, in which by plea the defendant set out the pleadings in the former action, was it competent for the plaintiff to introduce parol testimony the effect of which would be to contradict the allegations unequivocally appearing on the face of the pleadings in the former action. The rule is Avell established, if not ■elementary, that a party insisting upon a former recovery must show that the record of the former suit includes the matters alleged to have been determined. 3 Comst. 174. And the ■question of the identity of the two causes of action must be determined by the record; and if that state a particular cause of action as the foundation of the first suit, parol proof is not admissible to show that a different subjdct-matter was in fact litigated ; for this would be to contradict the record, which shows the issue, and the verdict and judgment upon that issue, to the exclusion of all other matters whatsoever.. 2 Story, Con. (5th ed.) § 1683; 3 Comst., supra.

3. The fact that the damages sought to be recovered in the present action were for an amount beyond the jurisdiction of a justice’s court, does not affect the principle above laid down, the rule being that all breaches of the contract up to the time of bringing the action on the same must be included in the one action. Civil Code, § 3793; Thompson v. McDonald, 84 Ga. 6, and authorities there cited. If the plaintiff, in order to bring the case within the jurisdiction of the justice’s court, abandoned part of his claim, the judgment recovered in that suit will be a bar to any action which he may bring to recover the part so abandoned. The same rule applies to other cases where the creditor has chosen to compel payment of a part of his claim by process of law. This will, in general, where the claim consists of an entire demand, operate as an extinguishment of the whole, upon the principle that a creditor shall not split up and' divide an entire cause of action so as to maintain two suits upon it. 2 Chitty, Con. (11th ed.) 1172.

Hence we conclude that the court committed no error in directing a verdict for the defendant on the plea of former recovery; and accordingly the judgment is

Affirmed.

All the Justices concurring.