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
HUGHES 'V. DUNDEE MORTGAGE TRUST INVESTMENT CO.
other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass or conversion of fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be. In respect to contracts, express or implied, each contract affords one, and only one, cause of action."
Tbe case of Baird v. U. S., supra, arose on a contract to furnish the United States 15 locomotive engines, in 1864, at a fixed price, with the addition of any advance that might take place in the cost of labor and materials used in their construction after November 9, 1863, and any damage' resulting from the preference given in this order over other contracts. The engines were duly delivered, and the fixed price paid. A claim was also presented for the advance in labor and materials, which was audited, and about two-thirds thereof allowed and paid. Subsequently an action was brought in the court of claims for the damages sustained in giving preference to the government order, in which judgment was given against the United States. On May 2, 1870, another action was brought in the court of claims to recover the "residue of the amount of the advance in labor and materials," in which, although the court found that the advance, over and above the amount paid, was the sum claimed, there was judgment for the defendant. Thereupon the" claimant appealed to the supreme court, where the judgment was affirmed, the court holding that the claims for construction, advance, and damage were all embraced in one contract, and constituted but one demand and cause of action. In the course of the opinion Mr. Chief Justice WUTE said:
"Here was a contract by which the government was bound to pay for the engines in accordance with terms agreed upon. The entire price to be paid was not fixed. A part was contingent, and the amount made to depend·upon a variety of circumstances. When the former action was commenced in the court of claims the whole was due. Although different elements entered into the account, they all depended upon and" were embraced in one contract. 1'he jUdgment, therefore, for the part then sued upon, is a bar to this action for the 'residue.' n
In R'eformed P. D. Ohurch v. Brown, supra, the defendant's testator had agreed in writing to pay the sum of $100 a year for the support of a minister of the gospel, in the township of Westfield, Staten island. At the testator's death four years' subscription were due on the writing, on which nothing had been paid. The plaintiff then sued ihe defendant, as executor, for the first $100 due on the writing, and had judgment therefor, and on the day following brought an action to recover the remaining three years' subscription. The court held that the judgment in the first action was a bar to the second one, saying:
"In order to avoid multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions. But when several claims, payable at different times, arise out of the same contract or transaction, separate actions can be brought as each liability inures. Still, however, if no action is brought until more than one is due, a recovery in the one first brought will be an effectual bar to a second action brought tu recover the other claims that were due when the first was brought."
Taking the application of the rule, as made in these cases, it is clear that the plaintiff's demand or cause of action against the defendant for services rendered the trust investment company, as an attorney, and the demand or cause of action for similar services rendered itself, were, as they existed on February 12, ] 883, the day on which the former action was commenced, entire and indivisible. Shortly, it appears from the plea that the plaintiff alleged in the former action, as thecause thereof, that he was appointed or employed as the standing attorney of the trust investment company fr(j)m January 1, 1876, to January 1, 1880, when it was merged in the defendant, for whom he continued to act in the same capacity until January, 1882. Assuming, as I have, that there was a distinct contract or employment by each corporation, though much might be said, if it was material, in support of the proposition that the service of the plaintiff was a continuous one, the latter corporation being in fact the legal prolongation of the other, still the plaintiff's demand or cause of action for the service rendered each corporation was an entire and indivisible one. Both these demands were joined in the action of Feb· ruary 12, 1883, and whatever was then due from the defendant on account of such services was a part of the causes of action on which said action was brought. If the plaintiff then had a claim against the defendant for services as an attorney, as alleged herein, it was a part of his cause of action, and should have been included therein; for, if he could divide the account into advice and counsel, attending suits in court, preparing certificates of title, so as to make three cause.s of action out of the transaction, there is nothing but his own teme;ity or sense of propriety to prevent him from subdividing it ad infinitum, so as to have a separate cause of action for each item of advice, or the 554 certificates of title mentioned in his complaint. , By such means the plaintiff might make for himself, out of a comparatively short service, almost a perennial cause of action. In the consideration of this case I have constantly had in mind the fact that the claims made by the plaintiff against the defendant grow out of the employment of the former by the latter as its attorney. In the nature of things, the services of a standing or regularly appointed attorney are usually rendered pursuant to some general contract or understanding, and whatever is due therefor at the end of the service or employment constitutes but one cause of action, and cannot be split up into several distinct ones. Lucas v. Le Compte, 42 Ill. 303. In the application of the salutary rule against splitting up demands, courts ought to be careful to leave no loop-hole through which an attorney may be tempted to harass and oppress his client with vexatious or spiteful litigation. Such things are well calculated not only to bring the profession of the law into disfavor, but the ad. ministration of justice into disrepute. The demurrer is sustained.
HOWARl;> f1. DENVER & R. G. RY. 00.
TRUST INVESTMENT Co. (Nos. 1,066 and 1,069. Two Cases.) Action to Recover Attorney's Fees. DEADY, J. These two cases were argued and submitted with the foregoing. The facts in the cases are similar, and the question made on the demurrers to the defenses is the same. In No. 1,066 it appears that the Oregon & Washington Mortgage Savings Bank was incorporated under the laws of Great Britain, and engaged in loaning money in Oregon and Washington; that the plaintiff was its attorney, and as such, prior to January 1, 1882, made and delivered to it 347 certificates of titles to certain lands, on which it loaned $565,103.59; that said certificates were worth 1 per centum of that sum, or $5,651.03; that in August, 1882, said corporation amalgamated with the defendant, who assumed to pay its debts, including the claim of the plaintiff, which, with interest, amounts to $6,907.07. In 1,069 it appears that the defendant was incorporated under the laws of Great Britain prior to 1879, and has since been loaning money in Oregon and Washington; that in 1879, 1880, and 1881 the plaintiff was the attorney of the defendant, and as such made and delivered to it 297 certificates of title to certain lands, on which it loaned $589,000; that said certificates were worth 1 per centum of that sum, or $5,890, which, with interest, amounts to $7,139.85. In both these cases the defense is made that the judgment given in the action commenced February 12, 1883, is a bar, to which the plaintiff demurs as in case 1,065, ante, 831. The defense is sustained, and the demurrer overruled, for the reasons given in that case. e. DUNDEE MORTGAGE
& R. G. By.
Oourt, D. Oolorado. March 23, 1886.)
MASTER AND SERVANT-NEGLIGENCE-FELLOW-SERVANTS-ENGINEER IN CIIARGE OF ENGINE .AND FIREMAN ON ANOTHER TRAIN.
A fireman on a passenger train, and an engineer in charge of an engine not connected with such train, but belongin$ to the same railroad company, are fellow-servants, and where the fireman IS killed by a collision between the engine and the train caused by the negligence of the engineer the company will not be liable. 2
Action against a railroad company to recover damages for the death of an employe caused by negligence. Plaintiffs obtained a verdict, and defendant moves for a new trial. The material facts are stated in the opinion. Rogers cf; Cuthbert, for plaintiffs. E. V. Wolcott, for defendant.
BREWER, J. This is a motion for a new trial which, by the direction of the trial judge, has been referred to me for decision. As I was not present at the trial, I feel at liberty to consider only the principal question upon which the ruling of the trial judge was made.
1 Reported by Robertson Howard, Esq., of the St. Paul bar. 2Respecting the liability of the master for an injury caused by the negligence of a fellow-servant, and herein of who are fellow-servants, see Garrahy v. Kansas City, St. J. & C. B. R. Co., 25 Fed. Rep. 258. -