
    Bowers v. Smith et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Action—Splitting Cause op Action. *
    In an action against executors for “provisions and supplies furnished” testator, it appeared that he died at plaintiff's house, where he had been sick some time; that, in a suit against defendants, plaintiff’s wife had recovered for nursing testator, and for “preparing and administering food, nourishment, meals, and medicine to and for him, ” during the time for which plaintiff claimed on account of “provisions and supplies; ” and that on the trial of the wife’s suit plaintiff had testified that he had agreed with his wife that she should have the claim for board of testator. The referee found that during the trial of the former action the wife was the owner of the account for board, but that plaintiff furnished “provisions and supplies ” for which he was entitled to recover. Held that, on the finding that plaintiff’s wife was the owner; of the account for board at the time of her suit, plaintiff cannot recover “for provisions and supplies” on an allegation that testator was indebted to him on the claim at the date of his death.
    2. Estoppel—By Pleadings.
    The plea of defendants in the suit of the wife that plaintiff owned the claim, does not estop them to now deny that he owns it, as they are not bound by pleadings in a former case, where plaintiff was not a party.
    Appeal from special term, Albany county.
    Action of Henry Bowers against William G. Smith and Charles H. Smith, executors of Edward Smith, to recover for provisions and supplies furnished testator. The ease was referred, and the finding of the referee was for plaintiff, in whose favor judgment was entered on the confirmation of the referee’s report, and now defendants appeal.
    Argued before Learned, P. J„ and Fish and Putnam, J.J.
    
      Moak & Buchanan, for appellants. Worthington Frothingham, for respondent.
   Putnam, J.

The referee finds that at and during the trial of the action brought by Emeline Bowers against these defendants she was the owner of and entitled to recover against the estate of Smith, if any one was, for and on account of the board of said deceased, Edward, and for the provisions and articles sought to be recovered in this action. The evidence justifies this finding of the referee. There is no conflict of testimony in this regard. The plaintiff states the agreement made with his wife in the complaint. He was present when she made out her bill against the estate of Smith for the claim sought to be recovered in her action, and when she verified the same; was present at the trial of her action, and was sworn as a witness,and testified to the agreement made with his wife, wherein he told her, if she took good care of Mr. Smith, she could have all there was for nursing and board. It is settled that such an agreement between husband and wife is valid. It was an agreement that if the wife would act as nurse, and take care of him, she might have or receive the compensation for her services as well as for his board. See Burly v. Barnhard, 9 N. Y. St. Rep. 587; In re Kimmer, 14 N. Y. St. Rep. 618. The evidence shows an election on the part of Emeline Bowers, assented to by her husband, to board and take care of deceased on her own account. Birkbeck v. Ackroyd, 74 N. Y. 356. It being established that, at the time of the trial of the action brought by Emeline Bowers against the executors of deceased, she was the owner of the claim in suit, we are unable to see how the judgment entered in this case can be sustained. In the first place, there is no allegation in the complaint that Emeline Bowers had assigned said claim to the plaintiff. In fact, the allegations of the complaint are inconsistent with such a claim. The complaint alleges that when Edward Smith died he was indebted to this plaintiff, etc. But, assuming that the evidence shows an assignment of the claim by Emeline Bowers to plaintiff, and that the complaint might be deemed amended accordingly, then the objections by defendants to the evidence of Emeline Bowers were well taken, and the motion to strike out her evidence of personal transactions with deceased should have been granted, such evidence being incompetent, under section 829 of the Code; and for this error the judgment should be set aside. But, as the referee finds and the evidence shows, Emeline Bowers, at the time of the trial of her action against the executors of Edward Smith, deceased, was the owner of the whole claim against him for nursing, care, and board, including the claim in suit. She recovered for the nursing, care, cooking, and preparing his food; but, it is claimed, not for the provisions or raw material out of which his food' was prepared. Could Emeline, owning the claim against deceased for board asserted in her complaint, on the trial before the referee, withdraw that part of such demand for the value of the raw material out of which the food was prepared, so that the claim therefor would not be barred, and would be a proper subject of another action, and at the same time recover for her services in preparing the food; in other words, split a single claim for board into two parts ? It is well settled that she could not. See Bendernagle v. Cocks, 19 Wend. 207; Obeirne v. Lloyd, 43 N. Y. 248; Hopf v. Myers, 42 Barb. 270. It makes no difference whether the claim for the raw materials comprised in the board was embraced in the claim set out in the complaint, and withdrawn, or was wholly omitted from the cause of action asserted in the pleadings. In either case the demand, being a part of the same board for which Emeline claims to and did recover, could not be separated from the other part, and could not be the subject of another recovery. This doctrine is too well settled to need the citation of authorities, or a discussion. In Hopf v. Myers, supra, (at pages 272, 273.) the rule is well stated as follows: “A suit brought for one portion of a demand, or for one of several demands arising out of the same contract or transaction, is a bar to a subsequent suit for the residue of such demand or demands, if they were all due when such suit was commenced; and the rule is the same where the first suit includes all the demands, though only a portion of them are therein litigated, or though a part be withdrawn.” Hence the judgment in the action brought by Emeline was a bar to any claim by her for the articles and provisions for which the plaintiff claims to recover in this action, and it is evidently a bar to any claim of plaintiff herein as assignee of bis said wife. She could assign to him no better right than she herself had.

But plaintiff insists that defendants, having, in their answer and on the trial of the action in the suit brought by Emeline Bowers, taken the position that the claim in suit was owned by plaintiff, are in this suit estopped from taking the opposite position. There can be no estoppel in this case in favor of plaintiff. If plaintiff sues as assignee of his wife for the claim in suit, there is evidently no element of an estoppel here. Defendants took the position on the former trial that plaintiff then owned this claim. This action, if brought by plaintiff as assignee, is founded on the theory that" plaintiff did not then own the claim, but that Emeline did. If estopped, defendants would be prevented from now claiming that plaintiff did not then own the claim in suit. But plaintiff, as assignee, does not himself claim that. He claims the contrary,—that he did not own the claim then, but has since purchased it. Defendants, then, are not estopped from denying what plaintiff himself does not allege. One of the elements of an estoppel is that the party claiming it should have relied upon the statement made or act done by the other party. Malony v. Horan, 12 Abb. Pr. (N. S.) 289. If plaintiff claims as assignee in this action, he does not rely upon the answer of defendants, or their position on the trial, that plaintiff was at the time the owner of the claim in suit. In Bailey v. Stone, 41 How. Pr. 346, and other cases cited by plaintiff, where defendants b#fore the j ustice claimed that the accounts in controversy amounted to over $400, and the action was thereupon discontinued, the defendants were held estopped because the other party had acted upon such claim, and were proceeding in another court, relying upon the validity thereof. If plaintiff brings this action, not as assignee, but as the owner of the claim in suit at the time of the trial ot the Emeline Bowers Case, there can be no estoppel, because plaintiff was not a party to that former suit, and was not bound by the judgment or proceedings therein; and hence an assertion made or position taken by defendants in that action cannot be used as an estoppel in this action brought between different parties. If defendants did claim or assert in the former suit that plaintiff was then the owner of this claim, they did not so claim or assert to plaintiff, and they are not bound by the statements in this action.

Again, it is held that there can be no estoppel in behalf of one who has a full knowledge of all the facts. In this case it would seem that plaintiff knew at the time of the former trial whether he did or did notown the demand set out in the complaint. He must have known all the facts much better than the defendants could, and hence it cannot be a case of estoppel. See Baker v. Insurance Co., 43 N. Y. 289.

The facts on the former trial, as in this, were undisputed; and the assertion of defendants, in thqir answer and their claim on the trial, that plaintiff was the owner of the claim in suit, should be deemed an assertion of a conclusion of law from the conceded facts, rather than an assertion of fact, and hence such assertion and claim do not constitute an estoppel. Brewster v. Striker, 2 N. Y. 19.

There are other questions raised by counsel, but it is- unnecessary to consider them. As before stated, the conclusion of the referee, that at the time of the trial of the action of Emeline Bowers against the same defendants she was the owner of the claim in suit, is fully justified by the evidence in the case; and, this being so, the judgment and proceedings in that action are a bar to the claim of the pla'intiff sought to be recovered in this action. The judgment entered on the report of the referee should be reversed, the referee discharged, and a new trial granted; costs to abide the event. All concur.  