
    Cockley v. Brucker
    
      Copartnership — Entirety of contract — Breach of contract — Rights and remedies — Merger,
    1. C. and- B. entered into a written agreement of copartner ship for the term of five years, C. agreeing to furnish the úse of a ' mill owned by him, and the necessary capital to conduct the business which was to be for the joint profit of both, and B. agreeing to devote his entire time, ability and energy to the successful prosecution of the business, and to render an account once each month, Held: that such a contract is entire and not separable.
    2. Upon breach of such contract by either party, only one action lies for such breach, even though there be. two or more acts amounting to a breach of the contract.
    3. A breach of tne contract on part of C., followed by an action by B. to have the partnership declared dissolved, a receiver appointed, assets converted into money, debts paid and balance divided between the parties, all of which is done by the order and judgment of the court, is a full and final determination of the rights and remedies of the parties under the contract, and B. cannot thereafter maintain an action against C. for damages for terminating the partnership before the expiration of the term of five years.
    4. In such case all the rights and remedies of B. against C. for breach of the contract are merged into the judgment in the first action.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Richland county.
    The said parties entered into the following written contract, at the time of the date thereof.
    “Shelby, Ohio, March 2d, 1886.
    Memorandum of agreement entered into this -day by and between David L. Coekley of the first part, and Francis Brucker of the second part, witnesseth:
    i That whereas the said David L. Coekley is now the owner of a stave and heading factory, located at Agosta, Ohio, he hereby agrees to furnish the use of the same and all of the capital necessary to successfully carry on said stave and heading business for the joint profits of both parties, and whenever the profits of said business shall be sufficient to remunerate the said Cockley for his entire investment in said business, then a deed for' the undivided one-half interest shall be made by him to the said Brucker. Said Francis Brucker of the second party agrees to devote his entire time, ability and energy to the successful prosecution of the business, and well and faithfully render an account of the same at least once per month to the said D. L. Cockley.
    It is understood that said parties have this day entered into a copartnership to run for the term of five years under the name and style of Cockley & Brucker for the purpose of running said stave and heading factory at Agosta, Ohio.
    Said Brucker does not have the authority or power to sign the firm name to any negotiable note or paper of any kind.
    David L. Cockley,
    Francis Brucker.”
    The parties ran the stave factory under this contract from the first of April, 1886 to the sixth of January, 1887, when they disagreed, and Mr. Cockley, defendant below, drove Mr. Brucker, plaintiff below, out of the factory, and excluded him therefrom. Thereupon plaintiff below commenced an action in Marion county against his partner upon his contract, setting out a copy thereof in his petition, and in connection with other averments, alleged that his partner had taken exclusive possession and custody of all the partnership property and books, and had'excluded him from access to the same; and' prayed that the partnership be adjudged dissolved, a receiver be appointed for the property and good will of the partnership, that the same be sold and claims collected, an account of the business betaken, the debts paid and the balance divided according to rights of the parties, and for all proper relief.
    Upon a hearing, the praj^er of the petition was granted by the court, a receiver was appointed, the property sold, and the business wound up under the orders and directions of the court.
    ■ Afterward the plaintiff below commenced this action against the defendant below, in the court of common pleas of Richland county on the same contract, alleging the same breach of the cod tract, but with more particularity, and with the addition of some aggravations, seeking in this last action to recover ten thousand dollars damages because the defendant below so conducted himself as to cause a dissolution of the partnership before the expiration of the five years.
    An answer was filed to the second amended petition, admitting the copy of the contract attached to the petition to be a true copy, denying that the defendant violated the contract, averring that the plaintiff below wilfully violated the same, that a receiver was appointed by the court of common pleas of Marion county who wound up said business, and further averred that in said action in Marion county between the same parties, the property rights in every way growing out of said partnership, were fully determined and adjudicated by said court. The reply is substantially a general denial of the answer.
    On the trial of the case in the common pleas of Richland county, the counsel for the defendant below introduced in evidence the record of the case in Marion county, and the court directed a verdict for the defendant.
    The circuit court reversed the judgment, and remanded the case for a new trial. . On petition in error this court affirmed the judgment of the circuit court, one judge dissenting. On a new trial in the common pleas, the plaintiff below recovered a judgment against the defendant for $6,960.00. The circuit court affirmed the judgment. On petition in error in this court, the case was orally argued, and upon looking into the record, sufficient errors appeared to warrant a reversal of the judgment ; and then looking back into the record when the case was here before, some doubts arose as to the correctness of the judgment of affirmance by the court at that time. Thereupon a rehearing was requested by one of the members of this court who had concurred in the affirmance, which rehearing was granted by the court, and the attorneys notified. They prepared additional briefs, and the case was again submitted aud considered by the whole court upon the briefs and both records.
    
      Skiles db Skiles, for plaintiff in error.
    We contend that all legal questions involved in this controversy are settled by the court of last resort in Ohio, and these questions in this case should be decided and settled by the decisions of our own state and not by any rule of law that may chance to be laid down by any decisions outside of our own state so long as the questions are settled in Ohio. Cincinnati v. Evans, 5 Ohio St., 594; Rhodes v. Baird, 16 Ohio St., 573; Newark Coal Co. v. Upson, 40 Ohio St., 17; Burkhart v. Burkhart, 42 Ohio St., 474; Powers v. Railway Co., 33 Ohio St., 435; 33 Pa. St., 426; 16 Ohio St., 573; 18 Ohio St., 169; 30 Ohio St., 604, 624; Railroad Co. v. Gardner, 45 Ohio St., 309; 4 Ohio St., 595; 5 Ohio St., 573. On the question of damages we cite a case on the rule applied by the United States Supreme Court which bears out the same doctrine as our own state, and we think this decision is conclusive. The United States decision, The Cincinnati Siemens’ Lungren Gas Illuminating Co. v. The Western Siemens’ Lungren Co., found in the advance sheets of the United States Supreme Court of April 1, 1894. The ground upon which the general rule of excluding profits for estimating damages is — ■
    (1.) That in the greater number of cases such expected profits are to be dependent upon numerous uncertain and changing contingencies to constitute a definite and trustworthy measure of actual damages.
    (2.) Because such loss of profits is ordinarily remote, and not as a matter of course the direct and immediate result of the non-fulfillment of the contract.
    (3.) And because most frequently the engaging to pay such loss of profits, in case of default in a performance, is not a part of the contract itself, nor can it be implied from its nature and terms.
    A litigant, proceeding as Mr. Brucker did, was bound, under the law, to make good his entire cause of action wherein it arose as- the facts in this case indicate, and as the record shows by reason of a claimed violation of the contract on the part of Mr. Coekley. Whatever was claimed at the time of this pretended violation of the contract and at the time they filed this suit in Marion county court, they were bound, under the law, to cover every phase of the case, and we say they did. But if they did not, under the law, as .they contend, i.t was their own fault, their own negligence, and they certainly cannot be permitted to visit their own fault, negligence or carelessness upon our' client. 20 Ohio St., p. 322; 13 Ohio St., p. 283, and authorities cited supra; 28 Ohio St., 596; 27 Ohio St., 233.
    The defendant in error claims that a suit in tort cannot be joined with a suit on contract. We ask the court’s attention to the 8th Ohio St., 515, and many other decisions in support of the same doctrine.
    If there is any proposition of law so thoroughly established as to be beyond doubt, it is that a judgment, decree or even a dismissal upon toe pleadings in a case is certainly a final determination and-constitutes a bar to any further litigation growing out of the same subject matter between the same parties. Foote v. Gibbs, 1 Gray, 412; Durant v. Fssex Co., 7 Wallace, 107; 5 Allen, 377; 1 Gray, 301; 99 Mass., 39; 4 Johns. Ch., 140; 29 Pa. St,, 78; 6 Ohio, 406; 7 Ohio, 529.
    The gentlemen cite a number of authorities claiming a different construction on this question, but they seem to lose sight of the fact that there was a time in the past wherein courts of equity were distinguished from courts of law, and courts of equity had no jurisdiction in a case at law. Nor could they consider or pass upon a legal defense or a counter claim not strictly equitable in its character. But such is not now the law. Under theCode and under the law, courts of equity have a right to go with and determine the legal rights of the parties as well as the equitable rights. 8 Ohio, 44; 4 Johns. Ch., 559; 5 Johns. Ch., 193; 13 Ohio St., 288; 6 Ohio St., 216; Roby v. Rainsberger, 27 Ohio St., 677.
    
      So,a report of a referee, master, etc., when confirmed by the court and rendered of record is conclusive, and affidavits or testimony attempting to show anything to the contrary are wholly inadmissible. Citing Leavitt v. People, 20th Alb. L. J., 413; Carver v. U. S., 111th U. S., 609; 28th Ga., 289; 58 Missouri, 327; 34 Md., 38; 37 Barb., 251; 72 N. Y., 300; 26 Wis., 152; 13 Cal., 620 ; 81 Ill., 278.
    A judgment by confession or default is conclusive evidence between the parties of all the facts alleged in the complaint necessary to make out the cause of action, and of all the legal principles necessarily applied in order to entitle the plaintiff to recover on facts alleged, and is binding as res judicata. 7th N. Y., 352; 48 N. Y., 676; 79 N. Y., 624; 86 N. Y., 448 ; 30 Minn., 424; 57 Cal., 558.
    Again, it is not the judgment in and of itself that creates the estoppel; it is not the recovery that creates the res judicata, but the matter alleged by the court on which the recover¶proceeds that creates the estoppel. No matter whether the recovery is by consent, default, confession or after a contest before a court and jury or court alone, or if upon demurrer, a judgment is rendered by the court upon a cause of action, the matter alleged that judgment is a judicial act on the merits between competent parties and merges that cause of action. 16 Cal., 389; 18 Md., 328; 17 Mass., 237; 48 Cal., 366; 68 N. Y., 676; Herman on Res Judicata, page 75, section 74.
    Whenever it appears that the same question had been directly decided by a court of competent jurisdiction between the same parties, it should be deemed res judicata. There is no need that both courts should have been courts of law or both courts of equity, or that all of the parties should have been the same in both suits. 99 U. S., 35 ; 70 Ala., 397 ; 77 Mo., 471 ; 54 N. Y., 644.
    
      Kerr do Brucker, for defendant in error.
    But in the case at bar the very purpose of the contract, the mutual obligations of the parties, was to continue for five years a concern for the sole object of making profits. The defendant was expressly obligated to do his part toward continuing the business for five years. We are not left to speculate about this rule — many cases with parallel facts have defined and applied it, some of which we cite. 101 N. Y., 205; 107 N. Y., 669; Treat v. Hiles, 50 N. W., 896; Amer. and Eng. Ency. of Law, vol. 1, pages 150, 151; Pomeroy’s Rights and Remedies, section 690; 52 N. W., 609; 17 Wend., 136; 97 N. Y., 507; 26 Am. St., 498; 128 N. Y., 455; 36 Ohio St., 261; 30 Ohio St., 624; 29 Am. St., 728; 39 Pa. St., 447.
    But if we understand the rule the court will not review this record upon the evidence, either as to its weight or the amount of damages. The circuit court has performed that duty and found that we were entitled to recover and that the verdict was not excessive.
    There are several reasons why this case ought not to be heard on the question as to what was litigated at one time in the court of common pleas of Marion county.
    1st. We cite the decision of this -court in the original case, a decision in which every judge but Judge Minshall concurred, and this upon a full and mature consideration after full argument. With the greatest respect Ue submit that under the. peculiar circumstances of this case, it would be an injustice to the defendant in error to reverse his judgment upon the question before presented and decided in his favor by an almost unanimous court.
    Two circuit courts passed upon this case, once upon the single question and fully argued, and once upon this record, and both decisions were that the defense of res adjudicata was not well taken.
    Nowhere in our brief in this cause did we argue this question because we supposed when an almost unanimous court, when it was composed of six members, decided it. Itabsolutely settled this question. Some of the reasons why this question in the record as it now stands cannot now be made we therefore propose to give now.
    
      Fwst — It seems clear to us that the court in granting a rehearing on this question must have overlooked one of its own decisions where it is expressly held that a rehearing in a case after the term in which it is decided- will not be granted even though requested by one of the judges. Horace Sabin Adm. v. Corcoran, 33 Law Bull., 36.
    
      Second — The question of res .adjudicata, is not before the court on the record in this cause. As the record now is there is not a particle of evidence that anything was ever litigated between these parties. Hicks v. Pearson, 19 Ohio 446; Busby v. Finn, 1 Ohio St., 312; Wells v. Warrich, 1 Ohio St., 387; Coach v. Irwin, 7 Ohio St., 23; Hallman v. Jacks, 11 Ohio St., 692 ; Fahey v. Esterly, 44 Am., State Rep.; Goldsmith v. State, 3 Ohio St., 208.
    
      Third — "We contend that the answer of plaintiff in error does not present the defense of res adjudicata. This case was tried on the amended answer to the second amended petition. That the receiver suit did not involve the question of damages as a matter of fact. Bates’ Pleading, vol. 2, p. 912 ; 2 Oregon, 269; Swans’ Pleading, 521; 37 Ohio St., 344; 53 Cal., 135; Herman on Estoppel, vol. 2, p. 1433; Lockwood v. Wileman, 13 Ohio St., 451; Spence v. Ins. Co., 40 Ohio St., 520; Nash, vol. 1, p. 102.
    Where plaintiff has two causes of action arising out of the same transaction, he has his election to bring either' separate actions in each or unite them. Bruce v. Kelly, 5 Hunter, 229; Bates, vol. 1, p. 199; 56 N. Y., 12, 85 N. Y., 345; Porter v. Wagner, 36 Ohio St., 475; 40 Ohio St., 521; Fahey v. Esterly Machine Co., 44 Am. St., Rep., 556; McDowell v. Langdon, 3 Gray, 513; Welmington R. R. Co. v. Ashbrook, 146, U. S. 279; Last Chance Mining Co. v. Tyler, 157 U. S., 683; Roberts v. Railroad Co., 158 U. S., 1; Simons v. Hart, 14 Johns., 63; 96 Am. Dec., 728; Barth v. Burt, 43 Barb., 628; United States Digest, first series, vol. 8, p. 123; Singer v. Heller, 40 Wis., 544; Bagley v. Smith, 10 N. Y., 489; Foye v. Patch, 132 Mass., 106; Stone v. St. Louis Co., 155 Mass.; Hixon v. Ogg, 53 Ohio St., 361; Railroad Co. v. Hoffman, 46 Ohio St., 643; The Lessees v. Trinnan, 10 Ohio St., 45; Cramer v. Moore, 36 Ohio St., 347; R. Company v. Stout, 46 N. W., 319. A matter is not considered Res Adyudicata unless there is a concurrence of the four conditions following, viz :
    
      First — Identity in the thing sued for (which is lacking in the case at bar.)
    
      Second — Identity of the cause of action (which is not the same here.)
    
      Third — Identity of person and parties to action.
    
      Fourth — Identity of the quality in the persons for or against whom the claim is made. (Wait’s Action and Defenses, vol. 6, 770.).
    The burden of proof on the question of estoppel is on the defendant (see Herman on Estoppel, page 481) but when the ease was before the Supreme Court the first time, we offered to show by witness, that no adjudication of damages was had but the court ruled out this testimony.
    Where the record is silent as to what is determined parol proof is admissible. 46 Ohio St., 643; 44 Amer. St., 556; 155 Mass., 267. We did not attempt to introduce oral testimony this time, because we relied on the former judgment of the Supreme Court.
   Burket, J.

The attention of the court is called to the rule of this court announced in Sabin v. Corcoran, 52 Ohio St., 690, which reads as follows: “Application for a re-hearing will not be entertained when made at a term subsequent to that at which the judgment is rendered, notwithstanding such re-hearing is requested by one of the judges. ’ ’

The case in which that rule was announced, was disposed of by the affirmance of a judgment of both the common pleas and circuit courts, and thereby the case was finally disposed of, and it could not return to this court for any purpose; while in the case here under consideration, the circuit court reversed the judgment of the common pleas, and this court affirmed the circuit court, and remanded the case to the common pleas for a new trial. Upon such new trial in the common pleas, a judgment -was rendered for the plaintiff below, which was affirmed by the circuit court. The case then again came here on petition in error by the defendant below to reverse the judgments of both the circuit and common pleas courts. While the ease comes here this last time on a new record, the old record and briefs still remain on file in this court, and the case when it so returns is still regarded as the same case that was here before. That this is so appears from section 440, Revised Statutes, which provides among other things that, “when a case is disposed of, and again comes into court, it shall be taken up as if it had its original place on the docket. ” So that this court construes the rule referred to as applying only to cases which are finally disposed of, and do not return to this court for review. Under this construction of the rule the rehearing was properly granted. Acheson v. Miller, 2 Ohio St., 203.

The action is founded upon the breach of the contract between the parties. That the defendant below was guilty of acts amounting to a breach of the contract, was in effect found by the court of common pleas of Marion county, in the action between the same parties upon the same contract, and for the purpose of this case, might as well be conceded. Such being' the case, the question arises as to the rights of the parties.’ Their rights and remedies must depend upon the nature, terms and effect of their contract, and what they have done under it.

The parties by the terms of their contract, entered into a copartnership for the term of five years, for the purpose of running' a stave and heading factory at Agosta, Ohio, for the joint profit of both parties. The defendant below on his part agreed to furnish the use of the factory at Agosta, owned by him, and all the capital necessary to carry on the business. The plaintiff below on his part agreed to devote his entire time, ability and energy to the successful prosecution of the business, and to render an account once each month When the profits should be sufficient to remunerate the defendant below for his entire investment, then he was to deed to plaintiff below one undivided half interest of what should be left after taking out defendant’s investment.

The consideration promised on defendant’s part, was the use of the factory and necessary capital; on the plaintiff’s part his entire time, ability and energy.

The contract fails to state how much of the plaintiff’s time, ability and energy, should pay for the use of the mill alone, or how much thereof for the use of the necessary capital alone. All of his time, ability and energy, was to pay for the use of both mill and capital. The use of both mill and capital, is the consideration for the time, ability and energy, combined. The contract is, therefore entire and not separable. The authorities are to the effect that when the consideration is single and entire, that the contract is entire, even though the subject of the contract consists of two or more distinct and independent items. Miner v. Bradley, 22 Pick., 457; 2 Parsons’ on Contracts, 517; Fish v. Folley, 6 Hill, 54; Shaffer v. Lee, 8 Barb., 412.

In this case the consideration on both sides is entire, and it is therefore clear that the contract is entire and indivisible.

For the breach of such a contract, only one action can be maintained. As the contract is single and entire, so the cause of action for its breach, is single and entire, even though there be different acts, each of which constitutes a breach of the contract. The breach of the contract may be more aggravated, but it cannot be more ample, by many acts in violation thereof, than by one act. One act sufficient to cause a breach of the contract, puts an end thereto, and many acts can not do more than end the contract. For putting an end to the contract by one or many breaches thereof, one action lies, and upon a final judgment being' rendered in such action, all the damages and causes of action arising from such breach of the contract, become merged into such judgment.

If from the nature of the contract, and the breach thereof, the party injurod has sustained damages, and has also other property rights under the contract, he must include his whole claim in one action, and if he omits a part, and recovers judgment for a part only, he cannot sustain another action for the omitted part, because the whole injury caused by the breach of the contract, is merged in the judgment recovered on the part sued for. A single cause of oaction cannot be split up into two or more causes of action; neither can two or more actions be sustained against the same party, on a single cause of action.

Stein v. Steamboat, 17 Ohio St., 471, and cases there cited; Erwin v. Lynn,, 16 Ohio St., 539, and cases there cited; Ewing v. McNairy, 20 Ohio St., 315; James v. Allen County, 44 Ohio St., 226.

From these considerations and authorities, it clearly appears that the judgment recovered by the plaintiff below in Marion county, in the action brought on this contract, exhausted all his rights and remedies for a breach of the contract, that the same are merged in said judgment, and that he has no further right of action by reason of such breach. It follows that the judgment of the court of common pleas in favor of defendant below, is right, and should be affirmed, and that all the other judgments in the case should be reversed, set aside and held for naught.

Judgment accordingly.  