Warren v. Comings

Massachusetts Supreme Judicial Court

Warren v. Comings

60 Mass. 103, 6 Allen 103

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1850

StatusPublished

Cited by3 cases

This text of 60 Mass. 103 (Warren v. Comings) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warren v. Comings, 60 Mass. 103, 6 Allen 103 (Mass. 1850).

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Opinion

Wilde, J.

We are of opinion, that there is no ground, on which the exceptions can be sustained. The law is perfectly well settled, that where a party brings an action for a part only of an entire and indivisible demand and obtains judgment, he cannot subsequently maintain an action for another part of the same demand. It was so decided in Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Phillips v. Berick, 16 Johns. 136; Miller v. Covert, 1 Wend. 487. And such judgment may be given in evidence under the general issue. 1 Greenl. Ev. § 531; Marsh v. Pier, 4 Rawle, 273, 288 ; 2 Smith Lead. Ca. 434, 444.

It has been said, that the plaintiff, in the former action, declared on a different contract from that declared on in this action. But the form of the action is immaterial; the plain* [105]*105tiff has recovered a part of a quarter’s rent, the other part of which is claimed in this action.

But if the law were doubtful on this point, or this ground of defence had not been taken, the action, nevertheless, could not be maintained on the facts reported; for there was no evidence that by the contract the rent was payable quarterly or semi-annually, and if there was no agreement as to the time of payment, rent would not be due and payable until the end of the year. But there is no doubt of the law, and that it fully supports the ground of defence taken at the trial.

Exceptions overruled.

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Wilde, J.

We are of opinion, that there is no ground, on which the exceptions can be sustained. The law is perfectly well settled, that where a party brings an action for a part only of an entire and indivisible demand and obtains judgment, he cannot subsequently maintain an action for another part of the same demand. It was so decided in Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Phillips v. Berick, 16 Johns. 136; Miller v. Covert, 1 Wend. 487. And such judgment may be given in evidence under the general issue. 1 Greenl. Ev. § 531; Marsh v. Pier, 4 Rawle, 273, 288 ; 2 Smith Lead. Ca. 434, 444.

It has been said, that the plaintiff, in the former action, declared on a different contract from that declared on in this action. But the form of the action is immaterial; the plain* [105]*105tiff has recovered a part of a quarter’s rent, the other part of which is claimed in this action.

But if the law were doubtful on this point, or this ground of defence had not been taken, the action, nevertheless, could not be maintained on the facts reported; for there was no evidence that by the contract the rent was payable quarterly or semi-annually, and if there was no agreement as to the time of payment, rent would not be due and payable until the end of the year. But there is no doubt of the law, and that it fully supports the ground of defence taken at the trial.

Exceptions overruled.

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Bluebook (online)

60 Mass. 103, 6 Allen 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-comings-mass-1850.

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