Napton, Judge,
delivered the opinion of the court.
This suit was to recover a freight bill amounting to $411.67, for transportation of certain goods from New York to St. Louis, at the 2-equest of defendant.
The answer sets up a counter-claim for $1000 damages for failing to deliver 58 tierces of rice, a portion of the cargo ordered by defendant. The reply admitted the failm-e to deliver the 58 tierces of rice; but set up a judgment recovered by Traube in the Circuit Court, U. S., against the plaintiff, for $2616; the value of said rice, and claimed the judgment which was paid was an adjudication of that matter, which barred the defendant from his counter-claim.
There was an agreed statement of facts, which was as follows :
1. It is admitted that the plaintiff transported from New York to St. Louis, and there delivered to defendant the various quantities of.merchandise mentioned in the petition.
2. It is admitted that the defendant accepted said merchandise, and the freight on the same amounted to $411.67, at the rate agreed upon between the parties, and that said freight on the merchandise delivered and mentioned in the petition, has never been paid.
3. It is further admitted, that at the time plaintiff received the merchandise mentioned in the petition from defendant, it also received fifty-two tierces of rice from the same film, and issued the bill of lading filed with the answer, whereby it undertook to transport the merchandise mentioned in the [359]*359petition and said tierces of rice from New York to St. Louis, and there deliver the same to defendant.
4. It is admitted that the plaintiff never delivered said rice to defendant at St. Louis, but in fact transported it to Indianapolis, and at the instance of certain New York merchants, carried it back to .New York and delivered it to said merchants, who claimed to own it, and took from said merchants a bond of indemnity against all claims for damages that might arise in consequence of plaintiff’s action; that in consequence thereof the defendant wholly lost said rice.
5. It is admitted defendant, prior to the commencement of this suit, brought an action of trover in the U. S. Circuit Court for the district of Missouri, against plaintiff ,for the conversion of said rice; that the plaintiff herein appeared and defended said action, and after trial had in due form of law, defendant recovered judgment against plaintiff in this action in the sum of $2616.74 for damages, at the April term, 1872.
6. It is further admitted, that in said action of trover, the jury, under instructions from the court to assess damages at the value of said rice at the time of conversion, in fact gave judgment for the value of said rice at the city of New-York, and that said judgment was not appealed from by either party to said action, and had been paid in full to defendant by said parties, who gave plaintiff" herein the bond of indemnity as aforesaid, prior to the commencement of this suit. It was further agreed to refer the case to Geo. B. Kellogg, Esq., as referee.
The referee found the facts to be, that defendant was indebted in the sum claimed in the petition for the transportation of the merchandise - delivered, and that the fifty-eight tierces of rice not delivered were worth in New York about two cents per pound less than they were worth in St. Louis, at the date of the delivery of the other merchandise forwarded, and therefore, that the defendant was entitled to $665 for the damage he had sustained by reason of the non-delivery of the rice at St. Louis ; but was further of opinion that, inasmuch [360]*360as defendant had only recovered the New York price of the rice in his action of trover in the Circuit Court of the U. S., and that judgment was not appealed from and had been paid, it was a bar to the counter-claim.
This opinion and conclusion of the referee was, on consideration of exceptions to it, confirmed by the Circuit Court, and subsequently at the General Term. And the only question presented by the record in this case, is whether this conclusion as to the plea of former recovery as a bar is on the agreed facts right. Notwithstanding the very ingenious and elaborate argument of the counsel for the defendant, we think the referee and the circuit judge and the General Term were clearly right.
There are several forms of action by which, previous to our code of practice, the responsibility of a common carrier for a failure to deliver goods entrusted to him could be enforced. An action on the case, or of trover or assumpsit on the express or implied contract, might either be maintained, and the advantages or disadvantages of either form are fully pointed out by Mr. Angel, in the 10th chapter of his work on Carriers. In the admiralty courts carriers by sea were proceeded against both for a breach of contract and for a breach of duty, and though originally common law actions against carriers were chiefly founded on tort, on the hypothesis that their liability depended chiefly on a breach of a public duty, the action of assumpsit was ultimately resorted to. Mr. Angel says: (§ 422) “In time they succeeded in establishing the existence of a contract, and then they at once became-liable to an action of assumpsit on their undertaking; and a very long established, continued and uniform usage has sanctioned the principle, and adopted the advantages of both forms of action, so that the case may be considered either way as arising ex contractu or ex delicto, according as the neglect or duty or breach of promise is intended to be relied on, as the cause of injury.”
It is not perceived, however, that in regard to the question of damages to be recovered where goods are intrusted to a [361]*361carrier ' and are not delivered according to 'his undertaking, there is any different mode of computing them, in any form of action which may be selected. In trover the value of the goods at the time of their conversion, is undoubtedly the measure of damages, and the same rule would prevail either in assumpsit or case. But the question still remains, whatever form the action may assume, whether that value is to be computed at the place where delivered to the carrier, or at the place of destination, and in regard to this Mr. Sedgwick observes, that it is well settled that the measure, of damages is the value of the goods at the place of destination, (Sedg. Dam., ch. 13) deducting the freight. And the case of O’Conner vs. Foster, (10 Wall., 418) which was an action on the case, decided that the true rule of damages was the difference between the value of'the wheat in Pittsburg, with the freight added, and the market price at Philadelphia (its place of destination) at the time it would have arrived there, if carried according to the contract.
Now the agreed ease shows that the action of trover in the U. S. Circuit Court, was to recover damages for the conversion of the fifty-eight tierces of rice, and that in estimating these damages the court instructed the jury that the measure of damages was the value of the rice at the time of its conversion. This instruction was right — but whether right or wrong, would not be material now. If a wrong instruction was given, it was the right of the plaintiff in that case to appeal, and have the error corrected.
Free access — add to your briefcase to read the full text and ask questions with AI
Napton, Judge,
delivered the opinion of the court.
This suit was to recover a freight bill amounting to $411.67, for transportation of certain goods from New York to St. Louis, at the 2-equest of defendant.
The answer sets up a counter-claim for $1000 damages for failing to deliver 58 tierces of rice, a portion of the cargo ordered by defendant. The reply admitted the failm-e to deliver the 58 tierces of rice; but set up a judgment recovered by Traube in the Circuit Court, U. S., against the plaintiff, for $2616; the value of said rice, and claimed the judgment which was paid was an adjudication of that matter, which barred the defendant from his counter-claim.
There was an agreed statement of facts, which was as follows :
1. It is admitted that the plaintiff transported from New York to St. Louis, and there delivered to defendant the various quantities of.merchandise mentioned in the petition.
2. It is admitted that the defendant accepted said merchandise, and the freight on the same amounted to $411.67, at the rate agreed upon between the parties, and that said freight on the merchandise delivered and mentioned in the petition, has never been paid.
3. It is further admitted, that at the time plaintiff received the merchandise mentioned in the petition from defendant, it also received fifty-two tierces of rice from the same film, and issued the bill of lading filed with the answer, whereby it undertook to transport the merchandise mentioned in the [359]*359petition and said tierces of rice from New York to St. Louis, and there deliver the same to defendant.
4. It is admitted that the plaintiff never delivered said rice to defendant at St. Louis, but in fact transported it to Indianapolis, and at the instance of certain New York merchants, carried it back to .New York and delivered it to said merchants, who claimed to own it, and took from said merchants a bond of indemnity against all claims for damages that might arise in consequence of plaintiff’s action; that in consequence thereof the defendant wholly lost said rice.
5. It is admitted defendant, prior to the commencement of this suit, brought an action of trover in the U. S. Circuit Court for the district of Missouri, against plaintiff ,for the conversion of said rice; that the plaintiff herein appeared and defended said action, and after trial had in due form of law, defendant recovered judgment against plaintiff in this action in the sum of $2616.74 for damages, at the April term, 1872.
6. It is further admitted, that in said action of trover, the jury, under instructions from the court to assess damages at the value of said rice at the time of conversion, in fact gave judgment for the value of said rice at the city of New-York, and that said judgment was not appealed from by either party to said action, and had been paid in full to defendant by said parties, who gave plaintiff" herein the bond of indemnity as aforesaid, prior to the commencement of this suit. It was further agreed to refer the case to Geo. B. Kellogg, Esq., as referee.
The referee found the facts to be, that defendant was indebted in the sum claimed in the petition for the transportation of the merchandise - delivered, and that the fifty-eight tierces of rice not delivered were worth in New York about two cents per pound less than they were worth in St. Louis, at the date of the delivery of the other merchandise forwarded, and therefore, that the defendant was entitled to $665 for the damage he had sustained by reason of the non-delivery of the rice at St. Louis ; but was further of opinion that, inasmuch [360]*360as defendant had only recovered the New York price of the rice in his action of trover in the Circuit Court of the U. S., and that judgment was not appealed from and had been paid, it was a bar to the counter-claim.
This opinion and conclusion of the referee was, on consideration of exceptions to it, confirmed by the Circuit Court, and subsequently at the General Term. And the only question presented by the record in this case, is whether this conclusion as to the plea of former recovery as a bar is on the agreed facts right. Notwithstanding the very ingenious and elaborate argument of the counsel for the defendant, we think the referee and the circuit judge and the General Term were clearly right.
There are several forms of action by which, previous to our code of practice, the responsibility of a common carrier for a failure to deliver goods entrusted to him could be enforced. An action on the case, or of trover or assumpsit on the express or implied contract, might either be maintained, and the advantages or disadvantages of either form are fully pointed out by Mr. Angel, in the 10th chapter of his work on Carriers. In the admiralty courts carriers by sea were proceeded against both for a breach of contract and for a breach of duty, and though originally common law actions against carriers were chiefly founded on tort, on the hypothesis that their liability depended chiefly on a breach of a public duty, the action of assumpsit was ultimately resorted to. Mr. Angel says: (§ 422) “In time they succeeded in establishing the existence of a contract, and then they at once became-liable to an action of assumpsit on their undertaking; and a very long established, continued and uniform usage has sanctioned the principle, and adopted the advantages of both forms of action, so that the case may be considered either way as arising ex contractu or ex delicto, according as the neglect or duty or breach of promise is intended to be relied on, as the cause of injury.”
It is not perceived, however, that in regard to the question of damages to be recovered where goods are intrusted to a [361]*361carrier ' and are not delivered according to 'his undertaking, there is any different mode of computing them, in any form of action which may be selected. In trover the value of the goods at the time of their conversion, is undoubtedly the measure of damages, and the same rule would prevail either in assumpsit or case. But the question still remains, whatever form the action may assume, whether that value is to be computed at the place where delivered to the carrier, or at the place of destination, and in regard to this Mr. Sedgwick observes, that it is well settled that the measure, of damages is the value of the goods at the place of destination, (Sedg. Dam., ch. 13) deducting the freight. And the case of O’Conner vs. Foster, (10 Wall., 418) which was an action on the case, decided that the true rule of damages was the difference between the value of'the wheat in Pittsburg, with the freight added, and the market price at Philadelphia (its place of destination) at the time it would have arrived there, if carried according to the contract.
Now the agreed ease shows that the action of trover in the U. S. Circuit Court, was to recover damages for the conversion of the fifty-eight tierces of rice, and that in estimating these damages the court instructed the jury that the measure of damages was the value of the rice at the time of its conversion. This instruction was right — but whether right or wrong, would not be material now. If a wrong instruction was given, it was the right of the plaintiff in that case to appeal, and have the error corrected. But it does not appear that any instruction was asked in regard to the place where the value was to be fixed, whether at New York, where the goods were bought, or at Indianapolis, where they were converted to other uses by the carrier, or at St. Louis, where the carrier agreed to take them. Nor does it appear that any evidence was offered to show the difference in the prices at New York and the prices at St. Louis, at the date of the conversion. And the jury, under the general instruction given by the court, gave damages for the value of the rice, estimating its cost in New York.
[362]*362Now the defendant here (plaintiff in the trover action) insists that the question as to the measure of damages, was not involved in the action of trover, and therefore the judgment in his favor, in that action, not being for as large a sum as he was entitled to, although not appealed from, is no bar to his present counter-claim for precisely the same subject matter involve^ in the trover suit.
The plea of former recovery is very equitably and liberally construed by the courts, and if the subject matter of the two suits is different, and the same question was not in fact litigated, and no evidence offered concerning it, the courts are disposed to allow the merits of the case to be investigated in the second suit. But there must, in considerations of public policy as well as settled law, be an end to litigation. The question is, whether the same cause of action has once been litigated and decided. If it has, there is an end to it, and ought to be, and it is the business of the party who brings the second action to show that the cause of action is different. The form of the action is immaterial, and if the cause be the same the judgment is conclusive, and therefore, a judgment in trover is a bar to an action of assumpsit for the same goods. (4 Rep., 34-6 ; 2 W. Black, 827; 3 Ch. Pl., 929; Agnew vs. McElroy, 10 Sm. & M., 555.)
It is now well settled that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings on which it was rendered, whether it includes the whole or only part of the demand sued on, upon the ground that an entire claim, arising either upon a contract or wrong, cannot be split up into several actions. (26 Mo., 532; 35 Mo., 447; Secor vs. Sturgis, 16 N. Y., 544; 15 Johns., 432; Id., 229; 16 Id., 137; 1 Wend., 487.)
Where the demands arise out of separate and distinct causes of action, the rule is otherwise. And even where several claims, payable at different times, arise out of the same contract or transaction, separate actions may be brought as each liability accrues — but in this case it has been held, that if no action is brought until more than one is due, all that [363]*363are due must be included in one action ; and if an action is brought when more than one is due, a recovery in that suit will be a bar to a second action brought to recover the other claims that were due when the first was brought. (Ref. Dutch Church vs. Brown, 54 Barb., 191.)
It is apparent from the statements in the agreed case that the cause of action in the suit tried in the U. S. Circuit Court is precisely the same with the one set up in the counter-claim, and the fact that the jury or the court did not give damages for the conversion of the goods, in that case commensurate with the real loss sustained, might have been a ground for an appeal or writ of error to that judgment — but the judgment in the ease, although the form of action was different, is a complete bar to a renewed litigation of the matter. It does not appear that any instruction was asked of the court trying the trover suit, in regard to the mode of estimating damages — nor does it appear that any evidence was.offered in regard to the difference in the value of the goods at New York and in St. Louis. Prima facie, such evidence was offered, as it was clearly admissible, and if it was not, the agreed case should have so stated. It is not however, clear, that whether offered or not, the result would be different, so far as the present counter-claim is concerned. It was evidence clearly admissible under the issue, and if not offered or introduced, that is no reason why another action should be allowed to investigate the same question a second time.
The judgment of the General Term is affirmed;
the other-judges concur.