Daniel B. Badger versus Ephraim Titcomb, 15 Pick. 409

Wilde J. delivered the opinion of the Court. This is an action of assumpsit on an account annexed to the writ, in which the defendant is debited with sundry supplies and advances furnished seamen, and for brokerage, in pursuance of a certain contract made between the parties before the charges and items in the plaintiff’s account now claimed to be recovered. The defendant pleads a former judgment in a suit brought by the plaintiff for the same identical cause of a'ction ; and the general question is, whether this plea is a sufficient bar.

And this question depends on two positions assumed by the defendant’s counsel, either of which, if well maintained, is decisive in his favor. The first position is, that the several items in the plaintiff’s account and those sued for in the former action, are par.” of one entire and indivisible demand, the whole being due and payable at the time of the commencement of the plaintiff’s first action.

The defendant’s second position is, that, admitting the demands to be several and independent, still all the demands were due and payable at the time of the commencement of the first action and might have been Recovered in that action, and evidence touching them was laid before the referee to whom that action was submitted. With respect to the first point, it is undoubtedly true, that only one action can be maintained for the breach of an entire contract, unless, by the terms of it, it is in its nature divisible.

But if one contracts to do several things, at several times, an action of assumpsit lies upon every default; for although the agreement is entire, the performance is several, and the contract is divisible in its nature. Thus, on a note or other contract payable by instalments, assumpsit lies for non-payment after the first day ; or where interest is payable annually, the payment of the principal being postponed to a future time, assumpsit lies for the non-payment of interest, before the principal becomes due and payable.

In all such cases, although the contract is in one sense entire, the several stipulations as to payment and performance are several, and are considered in respect to the remedy as several contracts. This principle has long been well settled, although the law in this respect has been very much modified by modern decisions. Still however the law seems to remain unchanged in respect to obligations to pay money by instalments, so that debt will not lie till all the days of payment are past.

A distinction has been made between a contract to pay five sums of £20 each, on five different days, and a contract to pay £ 100 by five sums of £20 on different days ; — a distinction, as Lord Loughborough remarks, in the case of Rudder v. Price, 1 H. Bl. 550, which is merely verbal, the substantial meaning being the same in each. After the action of assumpsit was introduced, a more liberal construction of contracts not under seal was adopted.

But, at first, it was held, that although, where the contract was to pay by instalments, assumpsit would lie on default of the first payment, yet the plaintiff was obliged to demand his whole damages, although only one of the several instalments was payable ; on the ground that the contract was entire, and that no new action could be maintained. In the case of Peck v. Redman, Dyer, 113, the judges were equally divided That was assumpsit on a contract to deliver twenty quarters of barley annually, during the lives of the contracting parties.

The breach was for non-delivery of the twenty quarters of barley for three years, and the question was whether the plaintiff was entitled to damages in recompense of the whole bargain, as well for the time to come as for the past. The case does not appear to have been decided ; the whole doubt and difficulty arose from considering the contract entire and indivisible. This doubt does not appear to have been finally removed till the case of Cooke v.

Whorwood, 2 Saund. 337, where the court determined, that in assumpsit to perform an award whereby the defendant was awarded to pay the plaintiff several sums of money, at several times, an action might be maintained for such sum only, as was due at the time when the action was brought; and that the plaintiff should recover accordingly, and have a new action as the other sums became due, toties quoties. In the case of Rudder v.

Price, before cited, the cases on this point are reviewed by Lord Lough-borough in a very able opinion, and I am not aware that any question has since been made as to the law in this particular. So that the principle is well established, that a contract to do several things at several times, is divisible in its nature ; and that an action will lie for the breach of any one of the stipulations, each of these stipulations being considered as a several contract. This we consider decisive as to the entirety of the contract set up by the defendant’s counsel.

We do not however consider this or the former action as founded on the contract in question. That contract or agreement, it is true, was intended to regulate the dealings between the parties as to profits, compensation, &c., while they continued to deal together without making any new agreement. But we do not understand that the parties were bound by the agreement for any paiticular time ; and if it were otherwise, this s not an action for a breach of the agreement; the agreement s only important as to the measure of damages.

But the action is founded on the advances made by the plaintiff and the other items in the account annexed to the writ. For these, the plaintiff would be entitled to recover, whether there was or was not such an agreement as that relied on by the defendant’s counsel. The defendant next contends, that a running account for goods sold, money paid, &c., is an entire demand, incapable of being split up for the purpose of bringing separate suits, and the case of Guernsey v.

Carver, 8 Wendell, 492, is relied on in support of this position ; and if that case was rightly decided, we think it would maintain the present defence. But we know of no principle of law, nor of any other decided case, on which the decision in that case can be sustained. It is said, that the law abhors a, multiplicity of suits; and this seems to be the only ground of the decision in that case. But that reason would apply to notes of hand and other demands unquestionably several and independent. If any evils should arise from multiplying suits which might be joined, it is for the legislature to provide a remedy.

There is already a law on this subject, by which a plaintiff, who brings several actions on demands which may be joined, is restricted in the recovery of his costs ; and if the provisions of this law are not sufficient, it is for the legislature to supply the deficiency. As the law is, we think it cannot be maintained, that a running account for goods sold and delivered, money loaned, or money had and received, at different times, will constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing, from which such an agreement or understanding may be inferred.

No such agreement or course of dealing is set up in this case, and consequently the defendant's plea that the cause of action in this suit is identical with that oí the former action, cannot be maintained. With regard to the second ground of defence, we think the principle of law on which it depends is well settled. If the items now claimed could have been proved in the former action, the presumption is that they were so proved.

But this presumption may be rebutted ; and if the plaintiff can prove that the claims now made, were not submitted to the referee in the former action, and that no evidence was offered to support them, he may well recover them in this action. This principle is laid down in the case of Webster v. Lee, 5 Mass. R. 334 ; and the same principle, with similar limitations, is laid down in Golightly v. Jellicoe, 4 T. R. 147 note ; and afterwards in the case of Seddon v. Tutop, 6 T. R. 607.

In that case the plaintiff in a former action declared on a promissory note and for goods sold and delivered ; but upon executing a writ of inquiry, after judgment by default, gave no evidence on the count for goods sold and delivered, and took his damages for the amount of the promissory note only. The court ruled, that'judgment thereupon was no bar to his recovering in a subsequent action for the goods sold. We do not however understand that the defendant’s counsel deny the general principle, but they contend, that evidence was offered before the referee touching a part or the whole of the present claim.

But the plaintiff offers to prove, that this evidence was not offered in support of his claim in the former action, but diverso intuitu, as affecting the application of the sums of money given in evidence as payment by the defendant. And that at the hearing before the referee, the bill of particulars in the former action, not comprising any item of account now claimed, was stated by the plaintiff as the subject matter of controversy, and as including all the demands he sought to recover in that suit.

The defendant agrees that the fact is so, if it is competent for the plaintiff to prove it; as to which, we think there can be no doubt. Auditor appointed.