Robbins v. Harrison

31 Ala. 160

• Court: Supreme Court of Alabama
• Decided: June 15, 1857
• Status: Published

Opinion

WALKER, J.

— An indivisible and entire cause of action cannot be split up into several causes of action; and therefore, a recovery upon a part of such entire cause of action will bar a suit upon the residue. But, where a party has two separate and disconnected causes of action against the same person, he may bring separate suits upon them; and a recovery, or a failure to recover, upon one, will not defeat a recovery upon the other in a different suit. — Wittick v. Traun, 27 Ala. 562; O’Neal v. Brown, 21 Ala. 482; Oliver v. Holt, 11 Ala. 574; De Sylva v. Henry, 3 Porter, 321; Locke v. Miller, 3 S. & P. 14; Louw v. Davis, 13 John. 227; Brockway v. Kinney, 2 John. 210; Rex v. Sheriff, 1 B. & Adol. 672, (20 E. C. L. 466;) Badger v. Titcomb, 15 Pick. 409; Colvin v. Corwin, 15 Wend. 557.

The plaintiff’s claim for ten dollai’s, on account of money loaned, and Ills claim for one hundred and eighty dollars, on account of the sale of two mules and a horse, were separate and distinct causes of action; and a judgment for or against the plaintiff', in a suit for the recovery of the former, would be no defense to a subsequent suit upon the latter claim.

A defendant, having a right of set-off, of cross action, may, at his election, bring it forward in the suit against him, or bring an independent suit upon it. The rule that a judgment is conclusive, not only as to every matter determined, but as to every matter which might have been set up as a defense to the cause, does not include rights of set-off. A defendant is not bound to plead his set-off'; though, if he pleads it, a decision against him is conclusive. See Guen v. Governeur, 1 John. Cas. 501; Phinney v. Earl, 9 John. Rep. 352; Minor v. Walter, 17 Mass. 238.

It follows that the omission of the plaintiff to bring forward his claim sued upon in this case, as a defense to the defendant’s action against him in the circuit court of Autauga county, would not bar the present action.

It may be that the fact of the plaintiff’s having brought a previous suit upon another demand, omitting the demand in this case, though due, would be admissible evidence, as conducing to show a discharge of the demand in this case. It would certainly, however, be entitled to but slight influence upon the question of payment or settlement; especially where," as in this case, the demand first sued upon was within a justice’s jurisdiction. But the second charge asked was not that the former suit was evidence conducing to show that the demand sued upon was settled; but that the former suit Avas evidence to which the jury might look to show that the demand was settled. The meaning of this charge is ambiguous. It is susceptible of the construction, that the jury might regard the evidence as actually showing a settlement of the demand. The charge was certainly ambiguous, and calculated to mislead the jury; and, therefore, the court did not err in its refusal. — Partridge v. Forsyth, 29 Ala. 200; Salomon v. The State, 28 Ala. 83.

When no credit is agreed upon, a sale of chattels will be regarded as having been.made for cash; and the purchaser will not be entitled to delivery, as a matter of right, without making payment. But a presumption of payment does not arise from the mere fact of delivery, when nothing is said as to whether the sale is for cash or on credit. Such a presumption would impose upon the seller, in every case, the onus of proving a negative — that a payment was not made.

What we have said disposes of the several questions in this case, and leads us to the conclusion, that there was no error in the charges given, or in the refusals to charge as shown in the bill of exceptions.

The judgment of the court below is affirmed.

StoNe, J., not sitting. .