Thompson v. Graham

Citations

• 246 Pa. 202
• 92 A. 118
• 1914 Pa. LEXIS 493

Syllabus

<p>Contracts — Action for breach — Indivisible .contracts — Judgment obtained subsequent, to breach as bar to ,action — Judgment before magistrate — Effect of appeal from magistrate’s judgment — Defenses.</p> <p>1. Upon an action for recovery of damages for breach of an alleged verbal contract made in August, .1907, which it was claimed gave to the plaintiff the right to cut, stock, saw, haul and deliver ties, mine ties, lath, slats and timber from a certain tract of timber land, to the defendant’s use, at a certain schedule of rates, and the breach of a certain other verbal contract made September, 1908, collateral to the first contract, it appeared that subsequent to the breaches complained of, plaintiff brought suit against the defendant before a justice of the peace to recover a balance claimed.' to be due on account of work done under the contracts ■ and obtained judgment therefor. Held, that the right of action in the plaintiffs being in its nature entire and indivisible, the recovery subsequent to the breach for one part of the claim was a bar to further action by the plaintiff for the whole, the residue or another part of the original claim, and that a nonsuit was properly directed. ■ •</p> <p>2. In such a case it was further held that the fact that the defendant had filed an appeal from the judgment obtained before the magistrate, which appeal was never adjudicated but was withdrawn by defendant, the controversy having been adjusted between the parties and the amount agreed upon paid, was no ground for the removal of the nonsuit, since the fact that the judgment was appealable did not render it any the less definitive.</p>