Burritt v. Belfy

47 Conn. 323

• Court: Supreme Court of Connecticut
• Decided: December 15, 1879
• Status: Published

Opinions

Loomis, J.

Under a parol lease for a term of years, the defendant, from the 1st of October, 1875, till the 1st of November, 1877, occupied certain real estate belonging to the plaintiff for an agreed rent of thirty-seven dollars and fifty cents per month, payable monthly in advance. The rent was not paid according to agreement, and on the 31st of October, 1877, there was due the plaintiff the sum of $173.63, and on that day the present suit was commenced, returnable to tlio City Court of the city of Waterbury liolden on tlio first Monday of December, 1877, for the purpose of recovering the rent due prior to the 1st of October, 1877. On the 1st day of November, 1877, the plaintiff commenced another suit, returnable before a justice of the peace on the 10th day of November, 1877, to recover for the rent due for the month of October, 1877. Both actions were general assumpsit for use and occupation only, and all the rent was due when the first suit was brought. The justice suit was first tried, in which the plaintiff filed his bill of particulars for “one month’s rent from October 1st, 1877, to November 1st, 1877, $37.50,” and recovered judgment for the amount claimed, with costs, which was paid and satisfied by the defendant after execution was issued.

In the present action tlio plaintiff filed his bill of particulars “for twenty-four months’ rent up to October 1st, 1877, at $37.50 per month,” giving credit for the amount received, and showing a balance of $136.13.

The defendant pleaded the general issue, with notice that the recovery and satisfaction of the judgment before the justice upon a part of the same cause of action would be claimed as a bar to this action.

The City Court decided that it was no bar and the ruling was sustained by the Superior Court. The question comes before this court for review on the defendant’s motion in error.

The legal proposition that a judgment for a part of one : entire demand is a conclusive bar to any other suit for another part of the same demand is every where inflexibly maintained.

There are some cases of great hardship where this court has applied the principle, showing how firmly it has been adhered to. In Town of Marlborough v. Sisson et al., 31 Conn., 332, the defendants had removed a pauper from the town of East Haddam to the plaintiff town, and left him there, for the purpose of throwing the burden on the plaintiff. The pauper had no settlement in this state and the plaintiff had to assume the expense of his support, and afterwards brought a suit for damages and expenses up to the time of trial and recovered judgment: The plaintiff then requested the defendants to remove the pauper,- which they refused to do, and Marlborough afterwards brought another suit to recover for the expenses incurred since the former judgment. It was held that the former recovery, though an inadequate one, was a bar to the action.

In Pinney v. Barnes, 17 Conn., 420, a suit had been brought in the name of the judge of probate against an executor after his removal from office, on 1ns probate bond, for neglect to pay over to his successor money in his hands belonging to the estate, and judgment was recovered for a certain sum. On a scire facias afterwards brought on the judgment it appears that the testator had given by his will certain legacies payable when the legatees should arrive at the age of eighteen years. At the time of the former judgment they had not arrived at that age, but the defendant had in his hands money belonging to the estate derived from the sale of lands sufficient to pay these legacies, but on the trial of the first suit no claim was made or evidence offered relative to these legacies, as they were not then due and the action had been instituted and was prosecuted solely for the benefit of those entitled to the residuum. It was held by a majority of the court that the former judgment was an absolute bar.