Lovejoy v. Chandler

Fitzgerald, C. This case and the case of Ebel v. Chandler, ante, p. 372, just decided, were tried together in the court below, and the testimony, decision, and transcript, except the amount of the judgment and the plea in abatement set up in the answer, of the pendency of another cause of action between the same parties and for the same cause, and the testimony on such plea, are in all material respects the same.

It appears that plaintiff, prior to the commencement of this action, brought an action against the defendant to recover the sum of $3,498 for damages for breach of the express covenant contained in the deed “ to warrant and defend the title to the same against all claims of Samuel and Margaret Poorman.”

[377]This action was brought to recover the sum of $3,498, and the interest thereon,amounting to $265.26, for money laid out and expended for and on behalf of the defendant by the plaintiff at the defendant’s special instance and request, and which defendant promised to repay to plaintiff.

The finding of the court, “ that there was not, at the time of the commencement of this action, another action pending or undetermined in this court between the same parties for the same cause of action as stated in the plaintiff’s complaint herein,” is sustained by the evidence.

We recommend that the judgment and order be affirmed.

Vanclief, 0., and Foote, 0., concurred.

The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.