13 Wend. 644 | N.Y. Sup. Ct. | 1835
By the Court,
It is difficult to distinguish this case from Guernsey v. Carver, 8 Wendell, 492. There the plaintiff’s account consisted of seven items of merchandize sold and'delivered between the 20th July and 27th August, 1828—amount, $2,35. The defendant pleaded a former suit, and prevailed before the justice. In the common pleas of Monroe, upon appeal, it appeared that the plaintiff had an account against the defendant of twenty articles of merchandize between the 4th June and 27th August, 1828—amount between $5 and $6 ; .that of the first trial, he proved items
The case of Philips v. Berwick, 16 Johns R. 136,illustrates the distinction between suits for separate and distinct causes of action, and a second suit on the same identical account, though for different items. The action was for work and labor performed before the 8th of March, 1817. The defendant showed that in September 1817 the plaintiff recovered against him for work and labor, laid in the declaration to have been done on the 8th of March, 1817. The court of common pleas of Montgomery county held it conclusive for the defendant, and nonsuited the plaintiff. This court reversed the judgment, on the ground that the plaintiff might show that the work, &c. was entirely different from that, for which he had, recovered in the former suit, and performed under a distinct contract. Mr. JusticeSpencer says, that there is no case or dictum which requires several and distinct causes of action to be joined in one suit. Theplaintiff may elect to sue upon them separately, and it is no objection that they belong to the same family of causes, provided their identity is not the same. He distinguishes the case then before the court üom Markham v.Middleton,2 Str. 1259,which was
Judgment reversed.