Paladini v. Municipal Markets Co.

SLOANE, J.

The plaintiff in this action was engaged in the wholesale trade of selling fish. He had branch establishments operating such business in various cities of California, one of which was at San Francisco and one at Monterey. Within two years prior to June 29, 1917, he had sold fish and fish products to the defendant, a dealer in Los Angeles, to the amount of $1,043.75. While all of said amount was due and owing, plaintiff brought suit in the justice’s court - of Los Angeles against the defendant and obtained judgment therein on an account for $231.82, for part of the goods which went to make up the total indebtedness of $1,043.75. The present action was brought subsequently in the superior court of Los Angeles County on an account for $811.93, the remaining sum of said total indebtedness. Judgment was for the defendant.

It is the defendant’s contention that all the items aggregating the total amount constituted a single, open, and running account between the parties.

The defendant set up as its sole defense, and the trial court found, “That each and every and all items constituting the account mentioned in the amended complaint on file herein, and each, and every and all the items constituting the amount sued upon, and mentioned in said action in said Justices’ Court, constituted, and do now constitute a part and parcel of said open and running account existing between plaintiff and defendant prior to said 29th day of June, 1917, and were, by reason thereof, necessarily involved in said former action,” and further, “That by reason of the said premises this action” is barred by the adjudication and judgment in the justice’s court.

It is upon the correctness of this finding and conclusion of the court that the judgment appealed from depends.

Appellant does not dispute that if the items of this entire claim arose upon the same running account and that the entire amount was due and owing when the suit in the jus

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tice’s court was begun, the failure to prosecute the entire claim in one action would be a bar to the subsequent suit on the remaining items of the account.

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It is clearly established that a party may not split up a single cause of action and make it the basis of several suits, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim. (15 R. C. L.,. Judgments, sec. 440;