21 Iowa 84 | Iowa | 1866
This question has been very fully presented and has received our most careful attention. Our opinion is, that the defense is not available, and that there was no error in sustaining the demurrer to this part of the answer. We shall undertake to do no more than state briefly the reasons leading to this conclusion.
We concede the justice and equity of the rule for which the appellants contend. Wé acknowledge, also, that it is founded in principle, and ought not to be departed from. And yet it ought not to be carried beyond the reason for it, nor applied to causes when it works manifest injustice and hardship. Nor is it clear in this case that there is a delinquency, and that it was not recovered for in the former action. It is equally clear that the money was not received until after the bond was given, nor until after the date of all the items claimed and recovered against the other sureties; and under the facts stated in the pleadings, and as found in the other case, there was a complete cause of action on the other bond at the time this was executed. After this, defendant’s liability commenced, and the defalcation now claimed for occurred. There is, to our minds, in these facts, a clear dividing line, and to apply the rule contended for, would be most unreasonable and manifestly unjust.
If we are correct in these views, it follows that this action could have been maintained against the sureties on the first bond. And if so, they were not released by the former recovery and the satisfaction of the judgment, and, as a consequence, there is in such satisfaction no impedi
Upon the general question here discussed, we refer to Phillips v. Berrick, 16 Johns., 136; Secor v. Sturges, 16 N. Y., 548. Of course, we need not say that this is quite unlike the case of Farrington v. Payne, 15 Johns., 432, and others like it, where there was a single indivisible act of trespass in relation to several chattels, and where it was most correctly held that plaintiff could not split his claim for damages, and bring separate actions for each particular article. To allow this would be in the teeth of all the authorities. So this is clearly distinguishable from Willard v. Sperry, 16 Johns., 121, cited by appellant, where the plaintiff brought five separate actions for money' due upon the same promissory note. Most indisputably the note formed an indivisible contract, and could not be the foundation of Several suits. Nor is the case of Smith v. Jones, 15 Johns., 229, any more-analogous. For there the plaintiff sold three barrels of potashes, at the same time, hy one entire contract. Two actions being brought, dividing the entire demand, it was held that both were erroneous, and constituted a fatal objection to the judgments appealed from.
But without pursuing this examination further, we unite in the opinion that the court below did not err, and that the judgment should be
Affirmed.