By the Oowt
McMillan, J.
The complaint contains four distinct causes of action; to the last, however, a demurrer was interposed, which was undisposed of at the time of the trial. The first three are all that claim our attention at this time. Before proceeding to the trial of the cause, the defendant in the court below, moved for a judgment upon the pleadings in his favor, dismissing the action as to the first, second and third causes of action, which was denied by the court. To the second cause of action the defendant in his answer, sets up new matter which is clearly a full defense, to which there is no reply whatever; and to the third cause of action the defendant pleads a prior action pending between the parties for the same subject matter, which is admitted by the reply; as to these two causes of action, therefore, there was no issue to be tried, and the defendant was entitled to judgment. The ground of the motion as to the first cause of action, was an alleged departure in pleading by the plaintiff. To constitute a departure in'pleading, the party must quit or depart from the case or defense which he has first made, and have recourse to another. 1 Ch. Pl. 644; Gould’s Pl. Ch. 8, Part. 3, Sec. 65. The action in this instance is brought for the recovery of the purchase price of certain logs. The alleged cause of action *433stated in the complaint is a special agreement of the defendant to pay a certain sum as tlie consideration for the pinchase of the logs mentioned in the complaint. It is the legal and not the natural identity which is to be presumed throughout the case. If, therefore, under the pleadings in this case the agreement of April 28, 1862, could be received in evidence to establish the complaint, the legal identity of the contract in the complaint and reply is established, and there is no departure. This will be determined by familiar and well settled rules. The complaint lays the sale of the logs and agreement to pay, in the fall of 1860, and after stating the quantity of logs, alleges an agreement by the defendant to pay the plaintiff for them at the rate of three dollars per thousand feet, and twenty-five cents per thousand feet in addition, if the lumber manufactured from the logs should net above seven dollar's per thousand feet at the mill — the amount to be paid in full before the spring of 1863. The first instrument set up in the answer, shows a sale of the logs in November, 1860, for two thousand dollars, the receipt of which is acknowledged by the plaintiff. The second instrument is the agreement of April 28, 1862, which recites the sale of the logs in the fall of 1860. The terms of this agreement, so far as the price of the logs is concerned, are the same as alleged in the complaint, but the agreement, in the answer, contains stipulations, first as to the mode of payment, that the defendant, out of the price of the logs, is to pay A. B. Barton & Oo., a certain sum, and after deducting amounts due S. W. Barnham, and Barnham & Go., the balance is to be paid for in the summer, fall and winter, after the date of the instrument. It also contains the further stipulations that Barnham is to pay for the scaling of the logs, to be done by Mark T. Berry, or some one agreed to by the parties; also that all expenses upon the logs up- to March, 1862, are to be paid by Estes, and not by Barnham or Barnham Co. The agreement of April 28, 1862, is evidently a modification of the original transaction- as evidenced by the-, *434bill of sale. Tbe bill of sale, so far as tbe acknowledgment of tbe purchase money goes, is in the nature of a receipt, and may be explained or contradicted by parol or otherwise, as any other receipt of money.
' The facts set up in the -answer show that no purchase money passed at the time, but that the transaction was to secure the amounts due to Barton & Co., and to Farnham and Farnham & Go., and that the payment was executory. Assuming that the bill of sale, as to the contract price, could not be varied by parol, yet payment being executory, it could certainly be changed by subsequent contract at the pleasure of the parties; it was, therefore, competent for the parties, by the agreement of 1862 — which is in writing — to change the purchase price of the logs, and regulate the mode and time of payment, which, it is evident, they have done here, since the prior sale is recited in the last agreement.
Where a contract has been made, and by a subsequent agreement between the parties, the former agreement has been modified and altered, the plaintiff may declare upon the contract as it stands altered by the subsequent agreement, without noticing the terms of the original contract, which have been dispensed with. 1 Ch. Pl. 307; Ib. 314; Robinson v. Tobin, 2 Eng. Com. Law Rep. 132; (1 Stark. R. 336) Boone v. Mitchell, 8 Eng. Com. Law Rep. 9; (1 B. & C. 18.)
In pleading, it is only necessary to state that portion of the contract which is complained of as being broken. 1 Ch. Pl. 303, 317, and it may be stated according to its legal effect. Ib. 305-6. The agreement to pay is alleged in this instance as being broken; it is only necessary, then, to allege the promise to pay, the sale as its consideration, and the breach of the promise. The last agreement covers the whole ground of the promise. Upon this contract, there is no doubt Estes can maintain an action for the breach of the promise to pay Barton & Co., out of the amount of the price of the logs, for as to him both privity of contract and consideration exist. *435Story on Cont. See. 4:50. Not only is there a direct promise to pay Estes, but even in its absence the legal effect of the promise to pay Barton & Co., is a promise to Estes, and may be laid as such in the complaint. It was not necessary then to state the particular mode of payment in this case; the legal conclusion stated in the complaint being supported by the agreement of April 28, 1862, there was no variance on this ground. Nor was there, we think, as to the time of pajment. The breach alleged is not a failure to pay either instalment, but a total failure to pay any part of the consideration, nor was the action brought until the whole sum was due by the terms of the contract; under these circumstances the proof supports the allegation. 2 Greenl. Ey. Sec. 104:. The stipulation as to the scaling of the logs, and as to the expenses up to March, 1862, are clearly distinct and separate from the promise to pay, and in this cause of action neither are relied on as any part of the plaintiff’s cause of action ; it was unnecessary, therefore, for the plaintiff to notice them in stating his case. 1 Ch. PL 303. If this reasoning is correct, there is no departure from the complaint in the plaintiff’s reply, as to the first cause of action; and as the motion for judgment was not divisible, and extended to the first three causes of action, it was properly denied. This disposes also of the exceptions taken by the defendant on the trial to the admission of evidence under the first count in the complaint, on the ground of departure in pleading. The defendant having set up in his answer the two instruments hereinbefore mentioned, pleaded payment to Barton & Co., according to the agreement, of $2,300, and that the plaintiff, at the time of the agreement, was indebted to defendant and Earnham & Co., on various accounts which are stated fully in the answer, and that after such payment to Barton & Co., and deducting such indebtedness there was no balance due the plaintiff. The plaintiff, in his reply, pleads a prior action pending between the defendant, as plaintiff, and the plaintiff and *436one S. S. Farnham as defendants, as to part of the indebtedness, viz: a note for $1,000, and alleges that, in the certain action pleaded by the defendant in answer to the plaintiff’s third cause of action, the defendant put in and set up as a counter claim in that action, certain book accounts and notes, and. orders, set up in the answer in this action. And, in reply to the coimter claim set up in this action, the plaintiff also pleads that the same account is portion of the counter claim set up in the certain former action pleaded by the defendant in answer to the plaintiff’s third cause of action herein. The plaintiff on the trial offered in evidence what purported to be a copy of an answer in a suit between plaintiff and defendant, to which the defendant objected on the ground ‘‘ that the same is not the best evidence; that no proper foundation has been laid for secondary evidence; there is no proof that it is a true copy, and that it is incompetent, immaterial and irrelevant.” The objection was overruled, and the evidence received, to which the defendant excepted. This was erroneous. It is sufficient to say that there was no preliminary proof whatever, either to show in what action the answer offered was made; the loss of the original answer; that the paper was a copy, or that it was served on the plaintiff as a copy of the answer in the action by Estes against Farnham, pleaded by plaintiff. The pleadings in the suit first mentioned having been received in evidence, and it having been admitted that the agreement referred to in the reply in that action, was that of April 28, 1862, set up in the answer, and admitted in the reply in this action, the defendant offered to prove that a hearing of such former suit was had before the referee, and that, on such hearing, the plaintiff introduced in evidence in support of his reply such agreement. The court rejected the offer, and the defendant excepted. This evidence was properly excluded. There is no plea of a prior action pending between the parties as to the first count in the complaint; this of itself determines the *437question. The defendant then offered to prove by parol what evidence was introduced in said action by the plaintiff (Estes) therein, in support of his reply to defendant’s counter claim and notes therein, and that the notes set up by defendant, as well as all the counter claim, except sufficient to satisfy the plaintiff’s demand therein, were withdrawn by the defendant on the trial, and before the submission thereof to the referee, to which the plaintiff objected, and the court sustained the objection, to which the defendant excepted. "We think it was competent for the defendant to show these facts. The plaintiff pleads in his reply, a prior action pending as to the notes and accounts set up in the answer ; this, by the terms of the statute, stands denied, and the defendant may countervail it by proof of any fact in direct denial or avoidance of the reply, which might be pleaded. Comp. Stat. Ch. 60, Sec. 88, p. 643. The record in evidence showed a reference oí the cause to a referee, but nothing further. The fact embraced in the offer was certainly an avoidance of the reply if it could be established, and we think the proof offered was competent, and should have been received. Raves v. Farmer, 4 Term. R. 146, and note A; Seddon and others v. Tutop, 6 Term. R 607; Haak, v. Bridenbach Exrs. &c., 3 S. &. R. 204; Snyder and Van Vechten, Exrs, &c., v. Croy, 2 Johns. R. 227. These cases clearly establish the principle that a recovery in a former action, apparently for the same cause, is only prima faoie evidence that the subsequent demand has been tried, but it is not conclusive. If the defendant has withdrawn a portion of his claim, and the cause has been tried, it is clearly no longer involved in the action, and if, after judgment, evidence of this character is competent, there is much less objection to it in a case like this. The defendant then offered to show that the pleadings in the action were lost in the hands of the referee therein, and that they could not be found, and then to prove by parol that the answer was amend ed on the trial, and that the copy here introduced does not present the real issue tried *438in that action. The court rejected the offer, and the defendant excepted. We think the evidence was competent. After proof of the loss of a record, its contents may be proved like any other document, by any secondary evidence, where the case does not, from its nature, disclose the existence of other and better evidence. 1 Green. Ev. Sec. 509, and authorities cited.
We are unable to discover in the paper book any such motion as is mentioned in the appellant’s eighth point. . This embraces all the exceptions to the rulings of the court on the admissibility of evidence which are material, and substantially determines the exceptions taken by the defendant to the charge of the court to the jury; we need not, therefore, consider them further.
The judgment of the court below must be reversed, and a new trial awarded.
Berry, J. I do not concur in the views expressed in the foregoing opinion on the question of departure.