Alkire Grocer Co. v. Tagart , 60 Mo. App. 389 ( 1895 )

Ellison, J.

(concurring). — An examination of the record has led me to a concurrence in the opinion of Smith, P. J. The record discloses this state of facts in reference to the purchases of goods made by defendant: On June 12, 1890, he bought a bill amounting to $89.42. This bill was on sixty days time, but if cash was paid in ten days or less, one per cent, was to be deducted. On July 25, 1890, he bought a bill amounting to $13.11, on thirty days time, with one per cent, off, if he would pay in ten days or less. On the same day he bought another bill amounting to $44.94, on sixty days time, two per cent, to be deducted, if he should pay in ten days or less. On August 11, 1890, he also bought two bills one of $43.90, on thirty days time, with one per cent, off, if he paid in ten days or less; and the other of $36.26, on sixty days time, with two per cent, off, if he paid in ten days or less. He then, on September 12, 1890, bought t^o bills, one for $97.08, on thirty days time, with two per cent, off, if he should pay in ten days or less, and with ten per cent, interest from maturity. The other was for $73.04, on sixty days time, with two per cent, off, if paid in ten -days, and ten per cent, interest from maturity.

Plaintiff joined in one suit all these bills, except the last one, and was defeated, the defendant having shown, at least, to the satisfaction of the jury, that he had paid them. On the day that plaintiff instituted that action, he brought the present suit on the last bill, and the question is: Does the judgment for defendant on the other bills bar the action on this bill? It is true, as stated by Judge Gill, that plaintiff’s agent testified he did not join the bill now in controversy with• the others, for the reason it would have made a total amount above the jurisdiction of a justice of the peace. These different bills were sold to defendant by a drummer, and it is true that the order for the two bills of September 12, is named on each of the bills as “No. 16074.” But this, of course, has reference to the drummer’s series of numbers for different orders which he had taken over the country generally.

It will be noticed that the different bills purchased at the times stated, evidence different - contracts. Some of tne bills mature in sixty, and some in thirty days time. In some of them two per cent., and in others one per cent, is to be deducted for cash paid in ten days. And the two purchased September 12, one of which is here sued on, not only mature at different dates and provide for two per cent, off for cash in ten days, but each provides for interest after maturity. These transactions between these parties were certainly separate and distinct transactions, and, to my mind, each transaction just as certainly represents a separate and distinct contract. It seems to me that the specific statement which I have made demonstrates this. While there is contrariety of opinion as to some phases of questions similar to the one involved here, I believe it is not disputed anywhere, that if the transactions are separate and are the subject of separate contracts, then each must necessarily represent a distinct cause of action.

It is true it frequently happens that several installments successively become due, which have arisen from one transaction. In such case, the rule is that you may sue on each installment as it falls due, or on any number that are due; and you must unite in one suit all that are due when the suit is instituted. As, if A rents a farm of B for a year, at ten dollars per month, payable monthly, if A allows more than one month’s rent to become due and then sues B, he must unite in the one suit all that are due. So, if A should sell a single bill of goods to B, the latter agreeing to pay for them in successive installments, all installments which are due at the time of bringing suit must be united in the one action. These illustrations represent several debts due at different times, yet all spring from the one transaction and one contract. But in the case at bar, eaeh bill represents a separate transaction, based on a distinct and independent contract. Whenever such is the case, the plaintiff can elect to sue on one or more in one action.

Defendant, however, is not put to the necessity of characterizing the nature of either of the purchases prior to those of September 12. For, looking at those two purchases disconnected from the others, I concede that, if they are such as that if suit is brought on one only, after both are due, the other would be barred, the present action is barred; since that is what has really been done, the former suit now pleaded in bar having included one of these bills. The real question, therefore, is: “Was the purchase of these two bills on the same day (conceding they were purchased at the same time) a single transaction?” I think not. This is apparent on the face of the two bills. They cover different articles of property, at different prices and on different terms. Time does not necessarily determine whether a transaction is single. Several times may, together, cover a single transaction, or one time may witness several transactions. If one person says to another, “I will give you $100 in- six months, with eight per cent, interest, for your horse, and I will give you $25 in twelve months, with six per cent, interest, for your cow,” and this is agreed to, we have two distinct transactions and two distinct contracts had and made at the same time. And certainly these represent different and independent causes of action. A reference to a few of the decided cases will, I think, serve to make my position plain:

In Brown v. King, 10 Mo. 56, the plaintiff had sold to the defendant several lots of bacon a few weeks apai’t, and it was held that an instruction was erroneous which assumed a recovery for bacon sold and delivered on September 11, was a bar to a claim for bacon sold the month before. In Smith v. Jones, 15 Johns. 229, there was an attempt to divide a claim for three barrels of potash into two actions; the court held that, as there was one contract for the entire quantity and no proof that the “ashes were sold at different times, or in different parcels,” the demand could not be divided. In Phillips v. Berick, 16 Johns. 136, the court said that there was no case or dictum which required a party to join in one suit, several and distinct causes of action, merely because they belonged to the same family. That the court might, to prevent vexation, under some circumstances, order a consolidation or several suits pending at the same time. That it was at “the election of the plaintiff, if he has distinct causes of action, to sue upon all or any of them when he pleases; and he has the further election to unite in one suit, under certain restrictions, not now necessary to be stated, several causes of action; but the defendant can not compel him to do this.77 Again in Jackson v. Colver, 1 Wend. 487, there was a sale at one time and by one contract,' of three tons of hay at $8 per ton, which was delivered in two deliveries of one and one half tons each. The court held that as there was one contract and one transaction, the demand was indivisible. In Bendernagle v. Cocks, 19 Wend. 215, the court said that the rule of indivisibility of demands did not extend to those which arose on distinct contracts. In American Sewing Machine Co. v. Thornton, 28 Minn. 418, it was held that in the absence of an agreement or circumstances showing it was intended that distinct contracts of sale should constitute a running . account, they were to be considered as distinct causes of action. And so in the case of Dulaney v. Dayne, 101 Ill. 325, it was held that distinct contracts, though made at the same time, constitute distinct causes of action.