Macon & Augusta Railroad v. Garrard , 54 Ga. 327 ( 1875 )

Trippe, Judge.

1. For the purpose of determining this case, it matters not whether the contract- between the plaintiff and defendant was entire or severable. When the first suit was brought the whole demand or debt was due. If so, it was incapable of division for the purpose of bringing separate suits therefor. Section 2939 of the Code provides “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.” Here it is not denied that the whole claim, all that was included in the first suit and judgment, as well as what is now alleged was not, was due when that suit was commenced. Either an entire breach of the whole contract, or every breach that is complained of under that contract, had then occurred. The meaning of the Code is that there cannot be subsequent actions for breaches which have already occurred, though they were not included in the first suit. This construction was recognized as the proper one in 45 Georgia, 155, and there are numerous decisions holding that it is the established rule of law, independent of any statute. The question is fully discussed and many authorities cited in 7 Robertson’s Practice, 175, et seq., sustaining the ruling we make. It is true there are some contrary decisions, but the plain meaning of the section of the Code quoted is sufficient to sustain our judgment.

2. It is not sufficient to overturn this rule of law, for the plaintiff to reply to a plea of former recovery, that when the first suit was brought he did not know the whole amount of his elai'tn — in this case, how many cross-ties he had in. fact furnished — where that ignorance was. from his own fault and negligence. Equity would not relieve in such a case ; that is, where the party, by reasonable diligence, could have had knowledge of the truth : Code, section 3126. And the principle goes still further. Even ignorance of a fact known to the opposite party will not justify an interference, if there has been no misplaced confidence,'nor misrepresentation, nor other.fraudulent act: Ibid. Here the evidence shows that the plaintiff below was all the while in full possession of all the means of ascertaining the true facts and what his entire claim was. He had twice moved in the matter; once in making a settlement with his debtor. Not satisfied with that, he brought one suit. On a second investigation, which he was legally competent to assert, a judgment was had— that judgpent'was pleadable in bar against a second suit for •a breach of the same contract, if that breach had occurred when the- first suit was brought. There is no principle in equity that will relieve him from the rule, under the evidence, in this case. We therefore are of opinion that the verdict was what the evidence required the jury to render, and that' there was error in granting a new trial.

Judgment reversed.