Lindsay v. Stewart

Paterson, J. This action was commenced in February, 1886, to recover from the defendant, first, the sum of $750 with interest, alleged to be due on a promissory note executed and delivered by defendant to M. H. Lindsay, who assigned to plaintiff; second, the sum of $396.91, for work, money advanced, and merchandise furnished by plaintiff, at request of defendant, between February 11, 1884, and February 10, 1886.

The defendant answered, denying generally and specifically every allegation of the complaint, and setting up a further defense and counterclaim, alleging that plaintiff was indebted to him in the sum of $1,660.13 for the balance due on a mutual, open, and current account for goods sold and delivered by defendant to plaintiff, also for work done, money lent and paid out, lands sold, rent of land, board and lodging, and for pasturage,—all between January 1, 1884, and December 14, 1885.

The court found,—1. That the note for $750 was executed and delivered, and thereafter duly assigned, as [542]alleged in the complaint, that only part thereof was paid, and there was still due and unpaid $292.50.

2. That of the items claimed by plaintiff in his “second cause of action,” the sum of $188.25 was still unpaid.

3. That defendant, on February 8, 1886, commenced an action in the Justice's Court against plaintiff for the sum of $118.18, for money lent, labor performed, and merchandise furnished, all of which items were included in and were a part of the counterclaim set forth in the answer of defendant herein; that the defendant therein (plaintiff herein) appeared and answered, denying each and every allegation of the complaint, and that said cause in Justice’s Court was at the commencement of this suit and is “still pending and undecided, and has not been dismissed nor discontinued.”

4. As conclusions of law, the court finds that plaintiff is entitled to judgment; that plaintiff’s plea in abatement be sustained and defendant’s counterclaim be abated and dismissed, and that plaintiff is entitled to judgment against defendant for $480.75 and costs.

The judgment was that “plaintiff do have and recover of and from T. H. Stewart, defendant, $480.75, and costs amounting to $128.15.”

There was no plea in abatement to the counterclaim of defendant, and there could be no such plea under the circumstances. To sustain the defense of a former action pending, it must appear that in that action the plaintiff is the same as in the action in which the plea is offered, and the cause of action in both must be founded upon one entire contract or upon one single or continuous tortious act. The law abhors a multiplicity of actions, and will not permit a party to prosecute two actions for the same cause, because it annoys and harasses the defendant without cause; but there can be no reason for the application of this rule in cases where the defendant in the former action is the aggressor, and the other party relies upon the matters contained in that action for his