Rosenstein v. Hynson

Ubneb, J., delivered the opinion of the Court. This action of replevin was tried in the lower court upon an agreed statement to the following effect: On October 5th, 1922, the plaintiff delivered to the defendants a flayer piano and accessories under a conditional contract of sale which reserved title in the plaintiff until full payment of the purchase price of $495, which was stipulated to be paid in instalments of $10 at the time of delivery and $3 weekly for the ensuing period of one hundred and sixty-two weeks. In August, 1927, the defendants having paid $294.49, and all ■of the remaining instalments, aggregating $200.51, being then due, the plaintiff brought suit before a justice of the peace for $87.43 of the amount then owing under the con ⁶²⁸ tract, and recovered a judgment for the sum thus sued for, which the defendants paid. Because of their failure to pay the instalments, amounting- to $113.80, omitted from the claim on which the judgment was obtained, the plaintiff has sought to regain possession of the piano and equipment by the pending suit in replevin.

The sole question to be determined is whether the recovery and collection of the judgment for part of the unpaid instalments of the purchase price, when all were due and payable, is a legal bar to the effort of the plaintiff to- repossess the property under the terms of the contract of sale. An affirmative answer to that question was given by the trial court in the form of an instruction granted at the request of the defendants. Erom the judgment entered on a verdict in their favor, the plaintiff has appealed. In suing for a part only of the instalments in arrears, when he was entitled to sue for all, the plaintiff disregarded the sound and settled rule that a fully accrued cause of action for the breach of a single contract must not be subdivided for the purposes of separate suits against the same party.

The object of the rule is to protect a defendant from the vexations and burdens incident to a duplication or multiplication of actions to enforce a liability for which one suit would be sufficient. The consequence of a violation of the rule is that a judgment recovered for part of the accrued indebtedness sued for separately may he pleaded to a suit for the residue of the claim, which is treated as being merged in the recovery procured in the first litigation. Olmstead v. Bach, 78