Fish v. Folley — 6 Hill & Den. 54

Majority

p. 54

Fish vs. Folley and another, adm’rs &c.

Headnote

An entire demand cannot be severed so to enable the party to maintain two suits thereon.

The defendant covenanted in 1822 that the plaintiff should have a continued sup, ply of water for his mills from the defendant’s dam, which covenant the latter totally failed to perform after 1826 ; and in 1835 the plaintiff brought an action for the breach, and recovered the damages sustained by him up to that time. Held, a bar to a second action for damages arising from a subsequent failure to perform.

Covenant, tried before Gridley, C. Judge, at the Oswego circuit in June 1840, The case was this: On the 12th of February 1822, Norman Hubbard, the defendant’s intestate, covenanted with the plaintiff to furnish him with sufficient water out of the mill dam of said Hubbard to carry the fulling mill and carding machine of the plaintiff, except during the dry season in summer, and the usual-time of freezing in winter; and at those times to let the plaintiff have a sufficient share of the water to carry one wheel &c. The covenant further provided that if the plaintiff should wish to use more water than for the purposes mentioned, he was to have the privilege of doing so at all times when such use would not interfere with the mills of the said Hubbard. The action was founded on an alleged breach of this covenant. Pleas, 1st, Ñon est factum ; and 2d, A former recovery for the same cause of action. At the trial the

p. 55

plaintiff proved the execution of the covenant, and a failure to perform on the part of said Hubbard from the year 1826 to the commencement of the present suit, together with the amount of damages sustained each year in consequence of such nonperformance. The defendants then gave in evidence the record of a former recovery in an action commenced during the term of January 1835, for a breach of the same covenant; insisting that there could be but one recovery thereon. The plaintiff offered to prove that the recovery “ only embraced the damages of the plaintiff up to the time of the commencement of the former suit” ; and he insisted that “ a continuance of the omission to supply water to the plaintiff’s mills since 1835” constituted a new breach, for which the present action was maintainable. The circuit judge excluded the evidence, and held the former suit a bar, to which the plaintiff excepted. Verdict for the defendants. The plaintiff now moved for a new trial on a bill of exceptions.

J. A Spencer, for the plaintiff,

cited Hambleton v. Veere, (2 Saund. Rep. 171, a, note (1);) Slack v. Brown, ( 13 Wend. 530 ;) Bendernagle v. Cocks, (19 id. 207;) Butler v. Wright, (2 id. 369;) Phillips v. Berick, ( 16 Johns. 136 .)

B. D. Noxon, for the defendants.

As I understand this case, there has been a total failure to perform the covenants on the part of the intestate and those representing him, since the year 1826, and a recovery had for the-damages arising therefrom to the plaintiff down to the year 1835, the time the former suit was brought. He now claims to recover from that time to the commencement of this action, insisting that the covenant is a continuing one, and the liability to perform on the part of the covenantor and his representatives, perpetual. I cannot assent to this construction. It is true, the covenant stipulated for a continued supply of water to the plaintiff’s mills; and in this respect it may be appropriately styled a continuing contract. Yet, like any other entire contract, a total breach put an end

p. 56

to it, and gave the plaintiff a right to sue for an equivalent in damages. He obtained that equivalent or should have obtained it in the former suit. To allow a recovery again, would be splitting up an entire cause of action, in violation of established principles. (Bendernagle v. Cocks, 19 Wend. 207 .)^[1]

New trial denied.

(a) (a) See Cowen & Hill's Notes to Phil, Ev. 842,3, 966, 7; also Bristow v. Fair clough, (1 Mann. & Grang. 143.)

Cases cited

Bleecker v. Smith 13 Wend. 530 N.Y. Sup. Ct. p. 55
Phillips v. Bericic 16 Johns. 136 N.Y. Sup. Ct. p. 55
Bendernagle v. Cocks 19 Wend. 207 N.Y. Sup. Ct. p. 56