Hopf v. Myers

By the Court, Foster, J. Upon the findings of the re-, feree, his report and the 'judgment rendered thereon cannot be sustained. The contract between the defendant and Richardson and Hopf, as well in relation to the return of the bags as to the sale of the malt, was entire; and the findings show that the defendant in this suit demanded the bags of Richardson and Hopf before he commenced the suit in New Jersey. His claim to recover for the bags had, therefore, accrued prior to that suit; and whether it was such as could be the subject of set-off in this suit, or not; and whether, in fact, it was included in the suit wh’ch he brought against them, or not; that suit was a bar to the claim. The rule is well settled, that 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 [273] 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where the first suit includes all the demands, though only a portion of them are therein litigated; or though a part be withdrawn. (Phillips v. Berick, 16 John. 136. Smith v. Jones, 15 id. 229. Farrington v. Smith, Id. 432. Miller v. Covert, 1 Wend. 487. Guernsey v. Carver, 8 id. 492. Stevens v. Lockwood, 13 id. 645. 2 Parsons on Contracts, 462. Smith’s Lead. Cas. 669.) And the fact that the defendant also demanded the return of the bags after the determination of the suit in New Jersey, does not change the question. His right of action for their value was complete, and he should have presented it in that suit. Perhaps, if the referee had found a valid agreement between the defendant and Richardson and Hopf, made while that suit was pending, and before the assignment to Schedell, by which they would return or pay for the bags, such claim could be set off against these plaintiffs; but he does not so find. He finds an arrangement made between the defendant and Sigismund Hopf, by which the defendant was not to litigate the claim for the bags in that suit; and that he, Sigismund Hopf, was to have the privilege of returning the empty bags, or to pay for such of them as he did not return. And he also finds that such agreement was not suggested on the trial; that no evidence was given on that claim, and that it was not in issue on the trial. It is very clear, that upon a finding that Sigismund Hopf agreed to pay for the bags, no set-off could be allowed in this suit; but that the demand, t<^ constitute a set-off, must be a joint one against Richardson and Hopf. The referee reported that the value of the bags was $612.50, and that the defendant was entitled to interest thereon, from the spring of 1856 to the first day of June, 1857, amounting to $42.87, being in all, on the first of June, 1857, $655.37, and exceeding in amount the judgment of the plaintiffs, which was rendered on that day. But thefinding [274] of the referee, which, so far as all questions here are concerned, must control, states the whole amount of the set-off, on the first day of June, 1857, to be $612.50, (and being less than the judgment,) with interest from that date. So that, at all events, according to the findings, the plaintiffs were entitled to recover $31.99 and interest thereon, from June 1, 1857. [Onondaga Generad Term, October 4, 1864. Several other questions are raised in the case, but if I am correct in- the conclusion that the former suit was a bar to the defendant’s claim to the set-off, the discussion of them is unnecessary. There should be a new trial, with costs to abide the event. New trial granted. Morgan, Sacón and Foster, Justices.]