Buck v. Wilson

Mr. Justice Clark delivered the opinion of the Court, This action of assumpsit was brought by W. H. Wilson & Co. against Dr. M. J. Buck, on a book account, for goods sold and delivered. The defendant gave in evidence the record of a former action, upon which judgment had been rendered in [429] favor of tbe plaintiff, and under tbe plea, of the general issue, defended upon the ground of a former recovery. See Finlay v. Handbest, 6 Casey, 190. The former suit was also an action of assumpsit, for goods sold and delivered, and an examination of the particular statement of the plaintiff’s claim, filed in the respective suits, shows that the items are in each case identical. The sales, it is admitted, were on thirty days credit; the last item in the account was for goods sold and delivered, 28d April, 1884. The first suit was instituted on the 1st of July, 1884, and the entire claim of the plaintiff was, therefore, at that time, due and payable. The plaintiffs contend, however, that on tbe 1st July, 1884. their whole account against the defendant amounted to $1,595.95 ; that the defendant had given to them his notes, as follows: March 6th, 1884, at three months, for $225; April 2d, 1884, at two months, for $100 ; April 10th, 1884, at three months, for $100; April 2d, 1884, at four months, for $125; and May 17th, 1884, at sixty days, for $267.65, and that the payment of the account was thereby extended, according to the tenor and effect of the several notes. Deducting the credits, and the amount of these notes, the balance of the account, on the 1st July, 1884, was $52.67, and the plaintiffs say, that the suit, instituted on that day, was for the recovery of that portion of the account represented by this balance, and the first two of the notes above recited, which were then due and unpaid; that the itemized copy of account filed showed a balance of $52.67, and was accompanied by copies of the two notes only. The verdict and judgment in that case was for tbe plaintiffs in tbe sum of $398.80. The present action, they say, is brought to recover that portion of the account represented by the last three notes. The suit is not upon the notes; it is for goods sold and delivered. A copy of the book entries, properly verified by the oath of the plaintiffs’ book-keeper is filed, and these entries are, as we have said, precisely the same as were contained in the former suit; the balance, however, which the account discloses to be “due and owing thereon,” is $875.46, which is, as the account itself shows, the amount of the whole five notes before mentioned, with the interest thereon, and the $52.67, which, with the first two notes, was embraced in the previous action. The plaintiffs’ claim at the trial, howevei', notwithstanding the showing of the account, and of the accompanying affidavit, was for that part of the account only which is represented by the last three of the notes, and as showing this, we are referred to an indorsement on the narr to that effect. It is admitted that the notes were neither given nor received in payment of the account; that there was no other extension [430] of time on part of the plaintiffs when the notes were given, than was to be implied from their receiving them. Mr. Wiison, the plaintiff, testified that'they were not considered as a payment, until they were paid. “ They weren’t taken,” he says, “as a settlement of the account, because they weren’t paid; they were charged back to his account, the same as you would take a check ; if the check is good it is all right.” A promissory note, taken for the whole or part of a debt, will only operate as an extinguishment of it, if so intended by the parties. The notes did not, therefore, discharge the original debt, evidenced by the account; they were taken merely for convenience, and as concurrent securities only. A debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire; it cannot, without agreement to that effect, be split up into separate and distinct demands, so as to form the basis of several suits; if divisible into two parts, it may, on the same principle, be divided into as many parts as it contains distinct items of charge, and no one would suppose that an action might be instituted on every item in a book account. It is undoubtedly true, however, that if parties contract that a debt shall fall due, and be payable in instalments, they have severed it, and distinct recoveries may be had for the several instalments or portions of the debt, according to the agreement, without involving the whole debt; but when the consideration is fully executed, and there is no stipulation of severance, the obligation to pay is ordinarily indivisible and entire. Sterner v. Gower, 3 W. & S., 143; Logan v. Caffray, 6 Casey, 196. In this case, however, it is not pretended, as we have said, that theré was any actual or express agreement to this effect. Mr. Wilson, himself, says there was “no special agreement,” about extending the account, more than was implied in taking the notes; that the notes were credited in the account and charged back if not paid; they can therefore, neither be regarded as effecting payment of the debt, nor an extension of the time of payment. For, “ where a creditor takes from his debtor a note payable at a future day on account of his claim, the law raises no implication that he agrees to give time, until the maturity of the note, for the payment of the original debt: but the agreement must be proved as a fact, dependent upon the understanding of the parties at the time when the security was given.” Shaw v. Church, 3 Wr., 226; see also, Weakly v. Bell, 9 Watts, 273; Bank v. Potius, 10 Watts, 150. When the cause of action is the same, a former judgment, in a suit between the same parties, though an inadequate one, is a bar to a second recovery: Pinney v. Barnes, 17 Conn., 420; so, an action brought for a part of an entire and indivisible de [431] mand, and a recovery therein, will bar a subsequent suit for the residue of the same demand: Rendavogle v. Cocks, 19 Wend., 207. See also Staples v. Goodrich, 21 Barb., 317; Warner v. Comings, 6 Cush., 108 ; Lewis v. Lecompte. 4-2 Ill., 303. There can be no question, under tbe evidence, that on the 1st July, 1884, if, in case of the threatened insolvency of the defendant, the plaintiffs had desired to collect the whole debt, they might have done so; tbe entire claim or demand of tbe plaintiffs was then due and unpaid, and they had the undoubted right to sue for and recover it. It is equally clear that the plaintiffs had a right in the first suit to proceed upon the two notes then due, which they then held as concurrent or cumulative securities; but they proceeded also upon the account, declaring for goods sold and delivered, and filed an itemized statement or bill of particulars, embracing every item of charge, in the account filed in tbe present case. If they allowed credit upon it, to which the defendants were not entitled, and in consequence failed to recover as much as they were in fact entitled to recover, their failure must be attributed to a misapprehension as to the effect of such a proceeding; but in our view of the case they are certainly barred from recovering in a second suit, for the same subject matter embraced in the first. To permit a party to recover in a second action what was included in and might have been recovered in the first, would be against the policy of the law and unjust, because it would harass a defendant and expose him to double costs: Brenner v. Mayer, 2 Out., 274; Hess v. Heebie, 6 S. & R„ 57. The judgment is therefore reversed.