27 Minn. 428 | Minn. | 1881
The defendants executed three promissory notes running to plaintiff, all at the same time, and for one and the same consideration. This action is brought upon
In the present action, defendants in their answer alleged the warranty as before, adding, however, that,' as a part of the contract of sale, and of the' consideration of the notes, plaintiff agreed that he would send a competent mechanic to
The contract, on the part of the plaintiff, was a contract ■of sale, accompanied by warranty, and, according to the second answer, by the agreement as to the surrender of the notes, the taking away of the machine, and that the sale and the notes should be void. This contract, though consisting, •according to the answer, of several parts, was one and indivisible. The whole of it was entered into at one time, between the plaintiff on the one hand and the defendants on the other, and upon one consideration. As it was one and indivisible, the defendants’ right of action upon it was one and indivisible also. They could not split it and maintain one action at one time for the recovery of a part of the damages arising from its breach, and another action at another time for the recovery of another part of such damages. Thompson v. Myrick, 24 Minn. 4. As respects the application of -this rule, there is no difference between setting up the breach •of such a contract as a plaintiff’s cause of action in a complaint and setting it up as a defendant’s defence in an answer.
Order affirmed.