Moran v. Plankinton , 64 Mo. 337 ( 1876 )

Sherwood, C. J.,

delivered the opinion of the court.

The plaintiff- had seventeen hogs stolen from him ; search being made his son discovered thirteen of them in the possession of the defendants, at their packing-house. The whole number, however, had been sold to defendants, who were innocent purchasers for full value. Plaintiffs, on discovering that thirteen of his hogs were in possession of defendants, went to their packing house, found six of his hogs killed, but not cut up, and replevied'them with damages for detention.

At the time plaintiff brought replevin, defendants had so cut up and otherwise disposed of the remaining eleven hogs, by packing them with others, that it was alike impossible to distinguish or replevy them.

As to four of the hogs, it does not appear from the agreed statement that plaintiff had any knowledge of their conversion when he brought his first»suit. The present one he instituted before a justice of the peace, for the value of the eleven hogs, and was successful ; but on appeal to the circuit court the defendants had judgment.

There is no doubt respecting the general correctness of the proposition expressed in the maxim : “ nemo debet bis vexaripro una et eadem causa.”

This rule, however, is not of universal application. The origin and object of the rule were the prevention of the vexations incident to a multiplicity, of suits, which the law, equally as much as equity, abhors.

• The principle above asserted finds more familiar expression in the statement, that a party shall not split his cause of action.

Now, it is quite obvious, that such prohibition pre-supposes knowledge of the constituent elements of the cause of action sought to be unwarrantably divided. If this be true, and it be true also that the law does not require what is impossible, then it must needs follow, that a party should not he precluded in consequence of. a former action, if such action were brought in unavoidable ignorance of the full extent of the wrongs received or injuries done. Any other conclusion would he reached only through sanctioning the rankest injustice.

In Farrington vs. Payne (15 Johns. 432), the question is asked: “ Suppose a trespass, or a conversion of a thousand barrels of flour, would it not be outrageous to allow a separate action for each barrel ? ” Undoubtedly it would. But ii^ such a case, where the owner is ignorant of the extent of his loss, would it not he far more outrageous to allow a recovery of one barrel, to prevent the recovery of the remaining nine hundred and ninety-nine ?

This question will meet with an affirmative response in every honest heart.

Our views of the matter now before us, then, are, that as to the four hogs, of whose conversion plaintiff was ignorant when he brought his first suit, he is entitled to recover the value ; and the law should have been thus declared. (Risley vs. Squire, 53 Barb. 280; Freem. Judg. § 241; Bennett vs. Hood, 1 Allen, 47.)

Judgment reversed and cause remanded.

All the judges concur.