75 A. 80 | Conn. | 1910
The plaintiff is a manufacturer of machines for setting tires upon vehicles, at St. Louis, Missouri. The defendant is a blacksmith, at New Britain, Connecticut. In May, 1906, the plaintiff sold by a written contract to the defendant one of its machines for $350. Fifty dollars was paid upon the delivery of the machine. The defendant, in the contract, agreed to execute and deliver to the plaintiff three notes of $100 each, payable, respectively, July 1st, 1906, September 1st, 1906, and December 1st, 1906. The defendant did not execute or deliver any of the notes, claiming that the machine did not perform its work.
Thereafter, on the 28th day of August, 1906, the plaintiff commenced an action before a justice of the peace at New Britain, Connecticut, to recover the sum of $100 alleged to be then due under the contract.
The case was tried, and on November 14th, 1907, a judgment for $100 was rendered in favor of the plaintiff. This judgment was paid and satisfied.
Subsequently, on the 18th day of March, 1908, the plaintiff *33 instituted the present action in the Court of Common Pleas against the defendant to recover $200, the balance of the purchase price, and the defendant pleaded in bar the former judgment rendered November 14th, 1907.
Judgment was rendered for the plaintiff for the full amount of $200, with interest, and from this judgment the defendant appeals to this court, alleging error in not sustaining the claim of the defendant that the former judgment was a bar to a recovery, and in not holding that the plaintiff had but one cause of action.
The trial court did not err in holding that the plaintiff had more than one cause of action. After the breach of the contract by the defendant's refusal to give the notes, the plaintiff had the right to treat the contract as broken and bring an action for damages. The court has found that the contract called for the payment of $100 on three different dates. Each default in the payment of money falling due upon a contract, payable in instalments, may be the subject of an independent action. Burritt v. Belfy,
It needs but an inspection and comparison of the records in the two cases to ascertain that the controlling facts in this *34
case were not in issue in the first suit, were not decided by it, and were not necessary to uphold it. No matter can be barred by a former judgment which could not have been a subject of recovery therein, though such matter may form a part of the transaction out of which the former action arose. Lovell v. Hammond Co.,
There is no error.
In this opinion the other judges concurred.
