Stevens v. Lockwood, 13 Wend. 644

Stevens v. Lockwood

13 Wend. 644 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

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 *646from. 4th June to 19th July. The defendant pleaded a tender and prevailed. The second suit was for items Between the 20th July and 27th August. It was assumed that the first tiaal was after the whole account had accrued. The court decided, that in a running account, where no special contract was entered into, each separate delivery formed a separate cause of action, and that separate suits might be brought for each. ■ This court reversed the judgment, considering the amount one entire and indivisible demand, putting it upon the principle of previous cases. Mr. Justice Nelson says, the whole amount being due when the first suit was brought, it should be viewed in the light of an entire demand, incapable of division for the purpose of prosecution. This has been followed since. It is true, that the case particularly referred to, of Miller v. Covert, 1 Wendell, 487, arose upon a contract to deliver three tons of hay. The hay was delivered in separate parcels; but the contract was one. Such also were the cases of Farrington v. Payne, 15 Johns. R. 432, Smith v. Jones, 15 id. 229 and Willard v. Sperry, 16 id. 121.

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 *647for an apothecary’s bill for £333, which the court an entire demand ; and it was so considered by Lord Kenyon, in speaking of it. The rule laid down in Guernsey v. Carver, is in accordance with the case of Markham v. Middleton, and with good sense, and is not opposed at all to the principle in Philips v. Berick. It is applicable to this case. Although this is not a merchant’s account, it is one continuous account; and, in the meaning of the preceding cases, indivisible. One suit, and only one, should be sustained. Upon a contrary principle, a separate suit might be brought for every separate item of an account; and twenty, or more, might be brought where only one was necessary.

Judgment reversed.