Koines v. Baxes , 5 Conn. Supp. 485 ( 1938 )

The plaintiff secured a judgment for injunctive relief and nominal damages for a violation of a contract under which he purchased from the defendant certain fixtures used in a restaurant and the good will of the business, in which contract certain restrictive provisions relating to the defendant again engaging in that business were included. He now moves that the judgment be opened in order that he may withdraw the prayer for damages and that the awarding of nominal damages be eliminated from the judgment in order that he may bring an action against this defendant and others for damages resulting from a conspiracy between such defendants to violate the restrictive provisions of the contract and thus avoid the possibility of being met with the defense of res judicata by this defendant as to the element of damages.

The motion should not be granted. Further, it does not appear to be necessary for the purpose indicated. The action plaintiff desires to bring rests on an entirely different cause of action and involves different parties.

"A right of action on a contract and for fraud in inducing plaintiff to enter into such contract may exist at the same time, and a recovery on one of the causes will not bar a subsequent action on the other." 34 C. J., 848, § 1258.

The motion to open the judgment is denied.