Home Insurance v. Tate Mercantile Co.

Citations

• 117 Miss. 760
• 78 So. 709

Syllabus

<p>1. Judgment. Former Adjudication. Conclusiveness.</p> <p>A judgment on the merits between the same parties for the same cause of action is conclusive between them. Neither does it make any difference that the planitiff in one suit is trying to recover in contract, and in the other suit in tort. The vital question is, is the plaintiff trying to recover in separate suits for damages growing out of one cause of action.</p> <p>2. Judgmfnt. Former Adjudication. Conclusiveness.</p> <p>Where plaintiff brought suit to recover a balance under a fire insurance policy, and in another suit attempted to recover damages in tort for delay by the insurance company in making payment, in su<*h ease all damages flowed from the breach of contract and an adjudication in one suit barred the other.</p> <p>3. Estoppel. Plea of res judicata. Demurrer. Misjoiner.</p> <p>A plaintiff canot in the same declaration, even in different counts, sue in contract and in tort. When the same declaration contains some counts in contract and others in tort, there is a misjoin-der of causes of action and a demurrer to the declaration will t be sustained. ,J</p> <p>4. Same.</p> <p>Where plaintiff sued in the same action for an unpaid balance under a fire insurance policy, and for damages for delayed payment thereon, and defendant demurred to the declaration and thereupon plaintiff confessed error and sued and recovored for the unpaid balance in a separate action, in such case defendant was not estopped from pleading res adjudicata in the suit, tried subsequently upon amended petition, asking damages for delayed. payment only.</p> <p>5. Action. Splitting cause of action in contract and tort.</p> <p>One haying a cause of action for damages arising from a breach of a contract, and which cause of action at the same time con-, stitutes a wrong for which the plaintiff may waive the contract and sue in tort, the plaintiff then has two courses either of which he may pursue. He may sue in contract for the damages