84 Ga. 5 | Ga. | 1889
1. According to the evidence for both parties, the lumber sued for by McDonald was included in the contract made by McDonald in behalf of Hall and McDonald with Mrs. Thompson, the plaintiff in error. It was so charged on the books kept by Hall and McDonald, and was included in the action which they brought against her and in which they recovered, after striking from their bill of particulars these items of lumber. They thus had a recovery against her for a part of the lumber included in their general account, which account was the result of one and the same contract made between them and her through her husband as her agent. At the time they brought the action in which they recovered, the items now sued for, as well as the rest of the general account, were due. At least nothing to the contrary appears.
Having voluntarily withdrawn these items from the account, they could not bring a second suit for them, the rule being that all breaches of a contract up to the time of bringing action on the same must be included in the one action. Macon and Augusta R. R. v. Garrard, 54 Ga. 327; Evans v. Collier, 79 Ga. 319.
2. Another conclusive reason why there could be no recovery in the subsequent suit is, that that suit was based upon an alleged contract, express or implied, with McDonald alone, whereas, as we have stated, it was proved by both parties that the lumber was furnished under the contract made with Hall and McDonald. No