Watson v. Clayton

The sufficiency of the defendant's plea of res adjudicata depends upon a construction and application of the statute, section 5721, Code 1923, rather than an interpretation of the accelerating clause in the contract. It provides: "If a contract be entire, but one suit can be maintained for breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein." (Italics supplied.)

It is a cardinal rule of statutory construction that the legislative intent is of the essence of the law, and, in finding the legislative intent, courts look to the previous state of the law and defects intended to be remedied. The first clause of the statute deals with entire contracts which are not severable, and is but declaratory of the common law, and is not here important. The second clause of the statute deals with entire contracts, the breaches of which are severable, and under the common law each breach constitutes a separate cause of action, and the party aggrieved had the right to bring a separate suit for each breach. Ryall v. Prince, 82 Ala. 264,2 So. 319.

It will be noted that the statute deals withbreaches, and the mandate of the statute is "all the breaches occurring up to the commencement of the action must be included therein."

The facts in the case of Ryall v. Prince, supra, illustrate the defect in the common law and the mischief intended to be remedied. In that case there were three breaches, according to the tenor of the contract for the payment of money, and the plaintiff instituted three separate actions in the same court at one and the same time, declaring in each for a separate breach, and the court sustained his right to do so, and as a consequence the defendant was mulcted in the costs of three actions when all of the breaches could have been declared on in a single action.

In the case at bar there was but a single breach of the contract — failure to pay the second interest note at maturity — and this is true, though it be conceded that the accelerating clause in the contract ex proprio vigore matured the entire debt.

It is therefore clear that the lawmaking department in the enactment of the statute had in mind installments maturing according to the tenor of the contract.

We therefore adhere to the pronouncement of the original opinion.

Application overruled.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur. *Page 62