L. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO., 109 F. 411

PARDEE, Circuit Judge, after stating tbe facts as above, delivered tbe opinion of tbe court. Tbe case shows that on October 1,1897, when tbe Atlantic Lumber Company declared tbe contract ended by tbe defaults of tbe L. Bucki & Son Lumber Company, and sued for general damages for tbe breach thereof, and to. recover tbe several amounts due for logs delivered prior to that date, tbe L.

Bucki & Son Lumber Company-had counterclaims against the Atlantic Lumber Company for breach of tbe guaranty that the logs delivered should average not more than 3-| logs to tbe 1,000 feet, board measure, during each month of tbe contract. These counterclaims existed for some certain months, 11 in number, in which full payment bad been made for tbe logs delivered, and for some certain 4 months for which payment bad not been made, but was demanded in tbe suit. In answering tbe suit, tbe L.

Bucki & Son Lumber Company claimed in recoupment and set-off, against tbe demand for tbe contract price of tbe logs delivered, but not paid for, tbe damages resulting from tbe breach of tbe guaranty as to tbe average of tbe logs for tbe certain months sued for, but made no claim for damages for tbe breach of tbe guaranty for tbe other months in which there bad been failure to maintain tbe average. In the present suit, brought to recover for tbe failure of tbe guaranty as to tbe average of logs for tbe 11 months, tbe question is whether tbe judgment in tbe former suit is conclusive.

The contract was one covering tbe sale of a large quantity of logs to be delivered in installments during a long period of time, and in which the payments were to be made in installments at times having relation to tbe delivery of tbe logs.

Tbe contract contained stipulations and guaranties in regard to which there might be failures and breaches frequently occurring during the life of tbe contract, — such as tbe failure to pay in time as agreed, and tbe failure to maintain tbe warranty as to tbe average of tbe logs delivered monthly, — none of which would necessarily put an end to tbe contract, even if suit should be instituted for such breach. Notwithstanding the subsidiary provisions, breadles oí which might warrant a suit, the contract appears to be an entirety, and not several independent agreements. Norrington v. Wright, 115 U.

S. 189, 211, 6 Sup. Ct. 12, 29 L. Ed. 366. See Clark v. Steel Works, 3 C. C. A. 600, 53 Fed. 494; Cherry Val. Iron Works v. Florence Iron River Co., 12 C. C. A. 306, 64 Fed. 569; Stokes v. Baars, 18 Fla. 656.

When the Atlantic Lumber Company declared the contract breached and ended by the defaults of the Bucki & Son Lumber Company, and demanded damages therefor, general and specific, it would seem that ¡he Atlantic Lumber Company was obliged to specify and demand all the damages, general and special, it claimed on account of the breaching and ending of the contract, and would not now be permitted after recovering judgment in such suit to prosecute oilier suits to recover other general or special damages growing out of the breach of the same contract; and this whether the general or special damage was known at the time of judgment or not.

If this be true, • — and we have no doubt” it is, — it seems clear that the same rule applies to the other party. • While the L. Bucki & Hon Lumber Company did not commence the litigation, it answered, and in its answer set up and charged a breach and abandonment of the contract by the conduct and defaults of the other party, and claimed damages resulting. But it is now claimed in regard to the warranty as to the average of the logs that the damages claimed by L.

Bucki & Hon Lumber Company were only in reduction and recoupment of the amounts claimed fox* logs delivered in four certain months, and that the breaches assigned in regard to the guaranty l'elated only to those months. We do not think that this varies the rule to be applied. When the contract was ended, the claims of each party for alleged breaches and damages therefor constituted an indivisible demand; and when the same, or any part of the same, was pleaded, litigation had, and final judgment rendered, such suit and judgment constitute a bar to subsequent demands which were or might have been litigated.

Baird v. U. S., 96 U. S. 430, 24 L. Ed. 703. But it is only necessarypto now hold that this is the rule to be applied as to damages for the breach of the specific warranty as to the average oí logs delivered under the contract. .That demand cannot be split up, and be made the basis oí subsequent suits.

The learned trial judge reached this conclusion, and gave his views in elaborate opinions found in the record." As the former suit is a bar to the present action, the other assignments of error need not be considered, and we only remark that the conclusion reached in the case does not air-pear to deprive the plaintiff in error of any just and equitable right. From, an inspection of the record, it appears that the breaches of the contract assigned were for months during which the Atlantic Lumber Company delivered, and tlie L.

Bucki & Hon Lumber Company apparently received and paid, for, logs in accordance with the provisions of the contract, making no question that the logs were not fully up to the requirements of the contract in regard to the average. In fact, in the Conner suit the Atlantic Lumber Company pleaded and offered to prove that the L.

Bucki & Hon Lumber Company “had acquiesced in and consented to the construction of the said contract that the average of three and one-half logs to the thousand feet, board measure, according to Preston’s' rules, did not mean an average of three and one-half logs to the thousand feet, board measure, according to said rules in each particular month’s delivery under the said contract, but that the said contract meant a general average covering the entire period of the said contract”; and this plea and evidence was rejected on demurrer.

The second paragraph of the contract provides that: “When the logs shall be ready for delivery at the log pens by the party of the second part, the parties shall jointly select a surveyor, whose wages shall be paid one-half by each party, who shall survey and scale according to Preston’s rules as the same shall be delivered to the said log pens, and report thereon in writing to each of the parties, and whose report shall be conclusive as to quality and quantity.” It is presumed that this provision of the contract was complied with, and, if it was, then at the time of delivery the L.

Bucki & Son Lumber Company was fully informed as tb whether or not the logs were in accordance with the requirements of the contract, and if, with such knowledge, the L. Bucki & Son Lumber Company then fully paid the contract price for the said logs without notice and protest, it seems to be pretty clear that now, after a litigatio'n in which the breaches of the contract by each party were in question was terminated by a final judgment, it is no denial of justice to refuse to reopen the inquiry as to how faithfully the average guaranty was complied with. The judgment of the circuit court is affirmed.