ALDEN v. THURBER et al.

149 MASSACHUSETTS, 271.-1889.

Contract for breach of agreement to sell goods. Verdict for defendant.

MORTON, C. J. The defendants agreed to sell to the plaintiff about ten thousand pounds of pure raspberry jam. They sent the jam to the plaintiff at Boston, and he remitted to them $1000 in part payment of the agreed price. After the receipt of the jam the plaintiff found and claimed that it was not pure raspberry jam, such as the contract called for. Some correspondence ensued between the parties, and on January 22, 1883, the defendants wrote to the plaintiff as follows:

"I regret very much your dissatisfaction about that lot of raspberry jam. Having seen the attorney's letter, I spoke to Mr. H. K. Thurber about it, and after discussing the matter, he desires me to say that, notwithstanding the fact that Mr. Chase insists that the goods were like the sample, he is willing to receive the whole lot back and credit it up to you, together with all freight charges, and in this way settle the matter, as we do not care to lose your trade, and we always desire to give our customers satisfaction. Advise us when and how you ship the jam."

Upon the receipt of this letter, the plaintiff sent back the jam, except one keg which had been sold, and requested the defendant to "remit our money at once." The defendants thereupon credited the plaintiff with the jam returned, and the expenses of freight and cartage, and remitted to the plaintiff the balance of the $1000 due him.

This was a mutual rescission of the contract. The letter of the defendants was an offer to settle and compromise the controversy between the parties. The acts and conduct of the plaintiff were an acceptance of that offer. This was a waiver of the right to sue for any preceding breach of the contract. The performance by the defendants of the new agreement operated as an accord and satisfaction for any breach, and discharged the old contract. Such was clearly the intention of the defendants, and as the plaintiff accepted their offer unconditionally, and thus induced them to perform it, he cannot now say that he had a concealed

intention not to discharge the prior breaches of the contract. This would be bad faith. Rogers v. Rogers, 139 Mass. 440.

For these reasons, we are of opinion that the Superior Court rightly directed a verdict for the defendants on the first count. Judgment on the verdict.1

(ii) Discharge by the judgment of a court of competent jurisdiction.

MILLER v. COVERT.

1 WENDELL (N. Y.), 487.-1828.

Action for work and labor.

Set-off by defendant for hay sold

and delivered. Judgment for defendant.

Plaintiff proved a claim for work and labor for $4.16. Defendant proved the sale and delivery to plaintiff of three tons of hay at $8 a ton.

Plaintiff proved that before the beginning of this suit the defendant had sued out an attachment against plaintiff, on the trial of which defendant proved the sale and delivery of one ton and nineteen hundredweight of hay on a contract for three tons, and said if A. R. were present he could prove the whole, but that he would reserve the remainder as there were accounts between the parties. Judgment for the one ton and nineteen hundredweight had been paid.

The court refused to charge that defendant could not set off the remainder of the demand in this action, and charged that he was not barred by the former suit.

SUTHERLAND, J. The court below erred in permitting Covert, the defendant, to prove and set off against Miller his account for the balance of the three tons of hay sold and delivered to him in January, 1827. The sale of the hay was by one single indivisible contract. Miller agreed to purchase three tons of hay from Covert, and Covert agreed to sell it to him if he had so much to spare, and in the course of a few days delivered the whole. It is perfectly settled, that if a plaintiff bring an action for a part

1 See also McCreery v. Day, 119 N. Y. 1, ante, p. 524.

only of an entire and indivisible demand, the verdict and judgment in that action are a conclusive bar to a subsequent suit for another part of the same demand. The cases of Smith v. Jones (15 Johns. R. 229), of Farrington & Smith v. Payne (15 Johns. R. 432), of Willard v. Sperry (16 Johns. R. 121), and Phillips v. Berick (16 Johns. R. 136) are precisely in point. If Covert could not have brought an action for the residue of the three tons of hay, he of course could not avail himself of it by way of set-off when sued by Miller.

Judgment reversed.

VANUXEM et al. v. BURR.

151 MASSACHUSETTS, 386.-1890.

Defense, former suit.

Contract upon a promissory note.

Judgment for defendant.

The following facts were agreed:

"The former action therein referred to was an action between the same parties begun before the maturity of the note now in suit; the declaration therein contained three counts, one upon a promissory note, and two upon a special agreement to procure the indorsements of the defendant's mother upon the last-named note and two others, one of which was the note sued on in this case. After judgment had been entered for the plaintiffs in the present suit in the municipal court, and the appeal taken by the defendant had been duly entered in the Superior Court, the plaintiffs recovered judgment in said former suit in the Superior Court by default, and by agreement damages were assessed at the amount due on said three notes, including the one now sued on."

The judge refused to enter judgment for the plaintiffs, and found for the defendant.

HOLMES, J. This is an action upon a promissory note made by the defendant. The only defense is, that in another action upon a contract to procure the defendant's mother's indorsement to this note and to two others, the plaintiffs, since the present suit was brought, have recovered judgment against the defendant for damages assessed by agreement at a sum equal to the amount due

on the three notes. If this judgment is not a bar, it is admitted that the plaintiffs are entitled to recover.

The two contracts were both in existence at the same time. They were distinct from each other in form, as appears from the statement of them. They were also distinct in substance. Supposing that the defendant could do no more to bind himself personally to pay the money to the plaintiffs than he did by making the note, still his promise to get the security of an indorser affected other things besides his personal payment or his personal obligation to pay. Its performance or breach affected the plaintiffs' power to discount the note before it was due, and the probability of their getting payment from another whom the defendant might be able to persuade to indorse, when he could not or would not induce her to pay if she had not indorsed. As the contracts were both in existence, and were different, and as they were both broken, it is plain that the plaintiffs have had two different causes of action, and there is no need to refer to the tests of difference which have been laid down in the books. Eastman v. Cooper, 15 Pick. 276, 286; Lechmere v. Fletcher, 1 Cr. & M. 623, 636. The question arises solely on the effect of the judgment.

What we mean when we say that a contract is legally binding is, that it imposes a liability to an action unless the promised event comes to pass, subject to whatever qualifications there may be to the absoluteness of the promise. Generally, if a man is content to make two legally binding contracts, he consents to accept the legal consequence of making two instead of one, namely, liability to a judgment upon each unless he performs it. It would be anomalous if a judgment without satisfaction upon one cause of action were held to be a bar to a suit upon another and distinct cause of action. No doubt, two contracts may be such that performance of one of them, or satisfaction of a judgment upon one of them, would prevent a recovery upon the other, either altogether or for more than nominal damages. In this commonwealth the decisions have gone somewhat further than elsewhere in treating satisfaction of one judgment as an absolute bar to another action. Gilmore v. Carr, 2 Mass. 171; Savage v. Stevens, 128 Mass. 254. But instances are too numerous and familiar to need extended mention, where the mere recovery of a

judgment is held no bar to another action, although the satisfaction of it would be. Simonds v. Center, 6 Mass. 18; Porter v. Ingraham, 10 Mass. 88; Elliott v. Hayden, 104 Mass. 180; Byers v. Franklin Coal Co., 106 Mass. 131, 136. This principle is applied, not only to actions against different parties, such as the maker and indorser of a note, or joint tort-feasors, but to actions against the same individual when he has given different obligations in respect of what is in substance the same debt. Thus, judgment upon a note given by an obligor as collateral security for his bond is no bar to a subsequent action upon the bond. Lord v. Bigelow, 124 Mass. 185, 189; Drake v. Mitchell, 3 East, 251; Lechmere v. Fletcher, 1 Cr. & M. 623; Fairchild v. Holly, 10 Conn. 474; Davis v. Anable, 2 Hill (N. Y.), 339; Burnheimer v. Hart, 27 Iowa, 19. See Greenfield v. Wilson, 13 Gray, 384; Moore v. Loring, 106 Mass. 455; Miller's River National Bank v. Jefferson, 138 Mass. 111; Stillwell v. Bertrand, 22 Ark. 379; Corn Exchange Ins. Co. v. Babcock (No. 2), 8 Abb. Pr. (N. S.) 256; United States v. Cushman, 2 Sumner, 426, 440.

The principle of the cases last cited is decisive of the one at bar. No distinction favorable to the defendant can be taken between an agreement made as itself collateral security, and an agreement to furnish collateral security. If there were any difference, it would be in favor of the plaintiffs; for the collateral contracts recovered on in the cases cited were simply other contracts of the defendant to pay money, whereas the contract of this defendant was a contract to get a third person to indorse, as we have stated. It is true, that in most cases there were other parties defendant in the first or second suit. But that circumstance had nothing to do with the ground of the decisions, as indeed it could not have had by any technical rule. The ground was that stated by Lord Ellenborough in Drake v. Mitchell, and approved by this court in Lord v. Bigelow: "A judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and therefore till then it cannot operate to change any other collateral concurrent remedy which the party may have." Parsons, C. J., states the law in the same way: "A judgment in a suit, where the action is given as a remedy merely cumulative,