Warren v. Comings

Wilde, J. We are of opinion, that there is no ground, on which the exceptions can be sustained. The law is perfectly well settled, that where a party brings an action for a part only of an entire and indivisible demand and obtains judgment, he cannot subsequently maintain an action for another part of the same demand. It was so decided in Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Phillips v. Berick, 16 Johns. 136; Miller v. Covert, 1 Wend. 487. And such judgment may be given in evidence under the general issue. 1 Greenl. Ev. § 531; Marsh v. Pier, 4 Rawle, 273, 288 ; 2 Smith Lead. Ca. 434, 444. It has been said, that the plaintiff, in the former action, declared on a different contract from that declared on in this action. But the form of the action is immaterial; the plain* [105] tiff has recovered a part of a quarter’s rent, the other part of which is claimed in this action. But if the law were doubtful on this point, or this ground of defence had not been taken, the action, nevertheless, could not be maintained on the facts reported; for there was no evidence that by the contract the rent was payable quarterly or semi-annually, and if there was no agreement as to the time of payment, rent would not be due and payable until the end of the year. But there is no doubt of the law, and that it fully supports the ground of defence taken at the trial. Exceptions overruled.