HUGHES tl. DUNDEE MORTGAGE TRUST INVEl:JTMENT CO.
"His right could not be affected by anything that occurred subsequently. He had no constructive notice of the proceedings in the Case of Mills & Bliss. [that is, of the senior creditors' bill.] Had he and his alienee actual notice? This also is a material inquiry. We have looked carefully through the record, and find no evidence on the subject. Had the suit below been in equity it would have been necessary for defendant in error to deny notice to himself or to his grantor. The want of notice to either would have been sufficient. The form of the action rendered a denial necessary."
In this present case there is no question of notice, itS the intervention herein is full notice to complainants. There is nothing in the delay of the intervenor to take possession of the property calculated to impair his right. The Iron & Steel Works do not appear to have been prejudiced by the delay. The demurrer should be overruled.
HUGHES fl. DUNDEE MORTGAGE TRUST INVESTMENT
(OiJrcuit Court, D. Oreg011. March 81, 1886.)
ACTION ON AN ENTIRE DEMAND.
Where an action is brought on a part only of an entire and indivisible demand, the pendency thereof may be pleaded in abatement of another action on the remainder, and a judgment in either may be pleaded in bar of the other.
CASE IN JUDGMENT.
H. was appointed the attorney of the defendant, a foreign corporation en. gaged in loaning money in Oregon on note and mortgage, and on February 12, 1883, after being so employed about eight years. he brought an action said corporation to recover the sum of $21,258.80, the alleged value of hIS services for that period, without specifying any particular service, except attending to two suits, for which he claimed the sum of $755.80, and had jUdgment thereon for $8,407.61, and $390.05 costs and disbursements; and afterwards, on September 5, 1884, he brought this action against said corporation to recover the sum of $11,222.74, with interest from January 81,1880, for services as an attorney during the period covered by the former action, in making and delivering to the defendant 554 certificates of the title to lands offered to the latter as security for loans, the sum demanded being equal in amount to 1 per centum of the moneys loaned on the lands included in said certificates. Held, that the claim now sued for was a part of an entire and indivisible demand and cause of action, existing when the former action was brought, and that the judgment therein is a bar to this action. The services of a standing or regularly appointed attorney are usually reno dered pursuant to some general agreement or understanding, and whatever is due therefor at the expiration of the service or employment constitutes but one cause of action; and courts should be careful in such cases, in the application of a rule against splitting up demands, not to leave any loop-hole through which an attorney may be tempted to harass and oppress his client with vexatious or spiteful litigation.
ATTORNEY AND CLIENT.
Action to Recover Attorney's Fees. Ellis G. Hughes, pro se. Earl C. Bronaugh, for defendant.
DEADY, J. This action was commenced on September 5, 1884, to recover the sum of $11,222.74, with interest from January 31, 1880, to date, amounting in all to $15,350.19. It is alleged in the com· plaint that the plaintiff is a citizen of the state of Oregon, and the defendant is a corporation duly formed under the laws of Great Britain, having its principal office at Dundee, Scotland, and is now lawfully engaged in business in Oregon, and that the Oregon & Washington Trust Investment Company was, from January 1, 1875, to January 31, 1880, a corporation also duly formed under said law, engaged in loaning money in Oregon and Washington on note and mortgage, with an agency at Portland; .that during said period plaintiff was a practicing attorney at law, resident at Portland, and at the request of said trust investment company, and for its use and benefit, did "make and issue to it in writing" 554 separate certificates, whereby he became responsible to said corporation that the title to the real property mentioned therein was in the party seeking a loan thereon, and that the same was free from all liens and incumbrances, for which service and responsibility saiel trust investment company "undertook and agreed to pay the plaintiff the reasonable value" thereof, which is 1 per centum on the amount of the loans made on said certificates, namely, $1,122,274, and that said trust investment company, on January 31, 1880, by reason of the issuing of sajd certificates, became and was indebted to the plaintiff in the sum of 1 per centum on said amount, namely, $11,222.74; that on January 31, 1880, said trust investment company amalgamated with the defendant, and assigned all its property thereto, in consideration whereof the latter "did assume and agree to pay all and every of the debts and liabilities" of the former, including the debt due the plaintiff; but that neither of said corporations has paid the same, or any part thereof, and the whole is now justly due him from the defendant. Among other defenses, the answer of the defendant contains the following: The plaintiff. ought not to have or maintain this action because, on February 12, 1883, he commenced an action against the defendant in this court, alleging in the complaint therein that said trust investment company did, about January 1, 1876, appoint the plaintiff its attorney, to attend to its business in Oregon and Wash. ington, pursuant to which the plaintiff did, between .Tanuary 1,1876, and January 1, 1880, render service to said corporation "in consulting and advising it about its business, and other acts and attendance in and about said business, at its request, of the value of $2,500 per annum;" that about January, 1880, said corporation amalgamated with the defendant, who thereupon "assumed its indebtedness and liabilities, including its indebtedness to plaintiff," and that "there· after the plaintiff rendered services to the defendant as its attorney, and paid out money for it, up to January 1, 1882," the value of which amounted to $2,500; that it was also alleged in the complaint in said action that the was indebted to the plaintiff for serv-
HUGHES 11. DUNDEE MORTGAGE TRUST INVESTMENT CO.
ices rendered in two certain law suits in the further sum of $755.80, and that the aggregate of defendant's liability to plaintiff on these several accounts was $21,258.80; that the defendant made a defense to tbe action, and on the trial thereof the plaintiff had judgment for the sum of $8,407.61, and $390.05 costs and disbursements, which judgment remains in full force and effect. It is then alleged in the defense that the service mentioned in the complaint herein was rendered before the commencement of said former action, and that whatever sum of money may be due the plaintiff for or on account of such service was due prior to the commencement of said former action; and that all the service alleged in the complaint herein to have been rendered to the trust investment company, and to this defendant, was performed under an appointment of plaintiff as the attorney of the trust investment company and this defendant, as alleged in the com. plaint in said former action; wherefore the defendant says that the plaintiff is "by said former judgment forever barred from recovering berein. " To this defense the plaintiff demurs, for that it does not contain facts sufficient to constitute a defense; and the point relied on in the argument in support of it is "that it does not appear that the claim or account of the indebtedness of the trust investment company made in the former action was placed [putJ in issue, litigated, or passed in to judgment therein." The point was also made that the judgment in the former action was suspended by operation of the writ of error sued out thereon by the defendant, but was afterwards specially withdrawn. In support of the point the plaintiff cites 1 Tidd, Pro 685; Russell v. Place, 94 U. S. 610; and Bigelow, Estop. 587-589. It is apparent from this that the plaintiff has misconceived the nature of this plea or defense. It is not, as he appears to think, a plea of a former recovery or adjudication of the claim sued on here, and that, there. fore, it must show, with the certainty required in pleading an estoppel, that such claim was made and passed on in said former action. But the defense is a plea that the plaintiff brought a former action on the same cause of action,-the same contract or account,-by reason of which he is ba1'l'ed from maintaining another action thereon, or any part thereof, although such part may not have been actually set up in the other action. This defense is not an estoppel, but a bar, founded on a rule of public policy, as just and expedient as the statute of limitations. This rule declares that no one ought to be twice vexed for the same cause,-nemo debet bis vexari pro eadem causa. It assumes that it is better that a plaintiff who wantonly or negligently splits a claim into parts for the purpose of suit should lose one of them than that the adverse party should be needlessly harassed by litigating, in detail, matters that could and should have been determined in one action. As was said by Mr. Justice NELSON, in Guernsey V. Carver, 8 Wend. v.26F.no.1l-53
494, "the law abhors a multiplicity of suits," and therefore, if a party bring an action on a part only of an entire and indivisible demand, the pendency thereof may be pleaded in abatement of another action on the remainder, and a judgment in either may be pleaded as a bar of the other. Bagot v. Williams, 3 Barn. & C. 235. C. 10 C. L. 115; Logan v. Cal/rey, 30 Pa. St. 196; Warren v. Comings, 6 Cush. 103; Lucas v. Le Compte, 4g Ill. 303; Farrington v. Payne, 15 Johns. 432; GUC1'nscy v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 Wend. 207; Beekman v. Platner, 15 Barb. 551; Reformed P. D. Church v. Brown, ,54 Barb. 191. Seco,- v. Sturgis, 16 N. Y. 548; Baird v. U. S., 96 U. S. 430. In Secor v. Sturgis, supra, 554, it is said:
"The principle is settled beyond dispute that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings 011 which it is rendered, whether the suit embraces the whole or only a part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment on the merits in either will be available as a bar in the other sUits."
In B(tird v. U. S., supra, 432, Mr. Chief Justice WAITE, speaking for the court, says:
"It is well settled that where a party brings an action for a part only of an entire and indivisible demand, and recovers judgment, he canllot subsequetly maintain an action for another part of the same demand. Warren v. Comings, 6 Cush. 103. Thus. if there are several sums due under one contract. and a suit is brought for a part only, a judgment in that suit will be a bar to another action for the recovery of the residue." See, also, to the same point, Bendernagle v. Cocks, supra, 215.
Occasionally the application of. this rule involves a nice question. 'fhe case of Secor v. Sturgis, supra, may be taken as one that leans, if at all, to the plaintiff's side of the question. Three brothers, under the name of Chas. A. Secor & Co., carried on the business of ship carpenters and chandlers in. a house in New York, the former being conducted on one floor thereof, under the management of two of the parties, and the latter on another floor, by the third one. arate books of account were kept of the two departments, and separate bills rendered therefor. Under these circumstances, carpenter work and articles of ship chandlery were done and furnished to the brig Leverett, for the defendant. 'fhe court held that the demands were distinct, and that a judgment in an action for one of them was no bar to an action on the other. In the course of the opinion it was said:
"The true distinction between dema.nds or rights of action which are single or entire, and those which are several and distinct. is that the former immediately arise out of one and the same act Or contract, and the latter out of different acts or contracts. Perhaps. as simple and safe a test as the SUbject admits, by which to determine whether a case belongs to one class or the