I dissent. I think there should be an affirmance on one or both of the following grounds.
(a) The replevin action was commenced on July 7, 1931, the usual bond having been given by plaintiffs. The sheriff executed the writ, took possession of the property, and made his return that he had so done. Defendant did Dot rebond. The circumstance that the property remained in defendant's possession, the sheriff having taken his receipt therefor, is of no moment. Plaintiffs having elected to replevin the property covered by the conditional sales contract, thus exercising one of their three rights thereunder, the contract was rescinded and came to an end; it could not thereafter furnish a ground under the lease for the maintenance of an action in unlawful detainer. See 5 Dunnell, Minn. Dig. (2 ed. Supp.) § 8651, and cases cited.
(b) The judgment in the previous action for wrongful detainer was res judicata and prevented plaintiffs from maintaining the present action for the same relief. The first unlawful detainer action was commenced September 28, 1931, and tried to a jury October 23, 1931, which returned a verdict of "not guilty" in favor of defendant. Judgment was entered thereon November 4, 1931, and no appeal taken. After the first unlawful detainer action had gone to a verdict but before judgment had been entered, plaintiffs commenced this action. It was predicated upon a default in the terms and conditions of the conditional sales contract which existed prior to the time of the commencement, prosecution, and trial of the first action. The trial court stated: *Page 644
"Said default of the defendant in the terms of said conditional sales contract would still exist were it not for the fact that the court finds that the judgment rendered in the said prior action estops plaintiff from maintaining and prosecuting the present action and is res judicata as to plaintiffs' present action, and providing, also, that the replevin action in the district court * * * has no effect upon said default."
The question here involved is whether plaintiffs, having two claimed grounds for securing the restitution of the premises, which were stated in the complaint in the first action, might, before that case had been finally determined, maintain another unlawful detainer action based upon one of the said two grounds stated in that complaint. In the lease there were at least six other covenants, which if breached gave plaintiffs the right to bring such an unlawful detainer action. Manifestly, plaintiffs could not bring as many such actions at the same time as there were breaches in the lease; nor could plaintiffs bring an unlawful detainer action for one of several existing breaches, lose out in that action, and then successfully maintain a separate action predicated on one or more of such other breaches. Such a multiplicity of suits would be vexatious and is prohibited. "A man should not be twice vexed for the same cause." "It is for the public good that there be an end of litigation." 3 Dunnell, Minn. Dig. (2 ed.) § 5159.
The first action was not to recover rent claimed to be in default, but for the restitution of the premises; the second action was not to recover the claimed defaulted payments under the conditional sales contract, but for the restitution of the premises. On September 28, 1931, the date of the commencement of the first action, plaintiffs had suffered but one, if any, actionable wrong — the claimed unlawful detention of the premises. In each case the issue was whether the premises were unlawfully detained by defendant from plaintiffs because of a breach or default by defendant in the terms of the lease, whether arising from failure to pay the rent or in the terms of the conditional sales contract, on or prior to September 28, 1931. There was but one cause of action. *Page 645
"A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. * * * They do not constitute the cause of action, but they show its existence by making the wrong appear. 'The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged * * * but the result of these in a legalwrong, the existence of which, if true, they conclusivelyevince.' " Olson v. Shephard, 172 Minn. 290, 293, 215 N.W. 211,212, and cases cited.
Both actions were predicated upon claimed breaches of covenants in the lease prior to September 28, 1931. Plaintiffs had a right to include in their complaint in the first action, and prove at the trial, all breaches existing at the time of the commencement thereof. The proving of one or more of such breaches would warrant recovery. The determination of the first action disposed of all breaches existing at the time it was commenced and established that plaintiffs were not entitled to possession; and the judgment therein, as found by the trial court, is res judicata.
The doctrine of res judicata as often announced by this court is that a judgment upon the merits in a particular action is an absolute bar to a subsequent action or suit between the same parties or those in privity with them, not only in respect of every matter which was actually offered and received to sustain the demand, but also as to every ground of recovery which might have been presented. Olson v. Shephard, 172 Minn. 290,215 N.W. 211; Klinkert v. Streissguth, 155 Minn. 388, 193 N.W. 687; McKnight v. Minneapolis St. Ry. Co. 127 Minn. 207,149 N.W. 131, L.R.A. 1916D, 1164; Kinzel v. Boston D. F. L. Co.124 Minn. 416, 145 N.W. 124; 3 Dunnell, Minn. Dig. (2 ed. Supp.) §§ 5159, 5163, 5167, and cases cited. The citations in the majority opinion are clearly distinguishable upon the facts. *Page 646