delivered the opinion of the court, March 3, 1884.
By. the agreement Hugus sold to Alcott & Waltz “all the timber, growing and being upon a tract of land in Addison Township, containing two hundred and twelve acres, on Cucumber Run, adjoining land of W. J. Baer, which is suitable for staves, ties and manufacturing into lumber; in consideration whereof said parties of the second part shall pay presently $25, and give their four negotiable notes at three, six, nine and twelve months in equal sums, to wit: $168.71.” • Within what period the timber was to be cut and taken is not stated, but the time and mode of payment are specified. In the first action the plaintiff could have recovered the whole contract price, if none of the timber had been cut, on the ground that the defendant had refused to give the notes. Refusal to give the notes was a breach of the contract, and the measure of damages could have been nothing less than the whole sum for which the notes were to have been given. Judgment upon the contract for default in giving the notes would have discharged the obligation; it could not be split into several actions: Shenk v. Mingle, 13 S. & R., 29. Had the timber all been cut before the beginning of that action, the plaintiff could have recovered the contract price, although, had the
The subject of sale consisted of the entire lot of standing timber of a specified quality, and the price to be paid was not apportioned to any item or part thereof, and therefore the contract is entire: Lucesco Oil Co. v. Brewer, 66 Pa. St., 351. A gross sum was to be paid for the timber, and the divisible nature of the payment had no effect upon its entirety. The consideration was cash and negotiable notes, presently to be paid and delivered. Although the notes were to become due at different dates, the vendor was entitled to them immediately.
The plaintiff filed in his first suit a narr. containing common counts, and a special count upon the written contract, averring that the defendant had not paid the several sums of money, nor given said negotiable notes as he had promised to do, or anjr or either of them, or any part thereof. He filed a statement of claim for the whole amount for which the timber was sold. But the court instructed the jury that the narr. was not for refusing to give the notes, but for timber actually taken by the defendant, under the agreement, prior to September 25,1878; that if the defendant had cut all the timber prior to that date, he must pay the whole consideration; “and if the defendant cut the trees on this Hugus land, both before and after the 25th September, 1878, he is to pay for what he cut before that date, and according to the price fixed in the agreement.” Neither the pleadings nor instructions of the court show that the plaintiff claimed a specific part of the consideration for which the note at three months was to be given; on the contrary, both show that he claimed the whole. The plaintiff presented his allegations and proofs in his own way; whether the ruling of the court was right or wrong is not now a question, for the judgment stands unimpeached.
Here, the narr. contains common counts, and a special count upon the same contract. The foundation for recovery in the former suit was the same as it is in this, and that judgment is a conclusive bar to another recovery: Corbet v. Evans, 25 Pa. St., 310. Whether the former claim was based on the breach for not giving the notes, or on the price of the timber according, to. the agreement, it was upon the contract. If for the default in not giving the notes, and it were clear that the verdict was only for one of them, he could not recover the amount of the others in a second suit: Logan v. Caffrey, 30 Pa. St., 196. No principle is better settled than that where a contract is entire, and not severable, but one action can be maintained thereon. The plaintiff was utterly mistaken if he
This is unlike a case where the first action was defeated by a mere technical objection. Where the merits of the second suit were necessarily excluded in the first, the plaintiff ought not to be barred, as where the judgment set up did not spring from the foundation of the action, but was the consequence of an objection that touched only the plaintiff’s then right to sue: Carmony v. Hoober, 5 Pa. St., 305. And in covenant where the plaintiff declared for instalments not due as well as those that were due, and the jury expressly found for those due, the recovery was not a bar to an action for an instalment not due at the'institution of the first suit: Kane v. Fisher, 2 Watts, 246.
Unfortunately for this plaintiff his first suit was not brought for an instalment of purchase money, payable at a certain date; it was for the purchase money on an entire contract, and the judgment for a small fraction of his demand discharged the obligation. Even where a demand originally consisted of distinct parts, and the plaintiff chose to have it tried as if entire, but recovered only a part, he is barred from recovering the other in a second action: Hess v. Heeble, 6 S. & R., 57. We conclude with the final remark of Justice Gibson in that ease: “ I am aware that this decision may bear hard on the justice of the cause, and I regret it; but it is peculiarly the province of a Court of Error to hold the rule steady and see that the particular equity of a case does not prevail over the law.”
Judgment reversed.