Miller v. Covert — 1 Wend. 487

Majority

p. 487

Miller vs. Covert.

Headnote

Where a party brings an action for a part only of an entire and indivisible demand, and obtains judgment in such action, he cannot subsequently avail himself of the residue by way of oif-set in an action against him by the opposite party.

Error from the Seneca common pleas. Miller sued Covert in a justice’s court, where judgment, on the 6lh July, 1827, was rendered in favor of the defendant for the costs of the suit. Miller appealed to the common pleas, where he proved a demand for work, labor and services, to the amount of $4,16. The defendant proved the sale and delivery to the plaintiff of three tons of hay, worth $8 per ton, which was all delivered in the month of January, 1827, though in two parcels of about a ton and a half each, under a contract in which the defendant agreed to sell the plaintiff three tons of hay, if he had so much to spare. The plaintiff then proved, that in April, 1837, Covert sued out an attachment before a justice against Miller, which was not personally served ; that on the return of the attachment, Covert declared for one ton and 19 cwt. of hay, delivered Miller in the preceding winter ; that on the trial, Covert said that Miller liad had three tons of hay, and if A. E. was present, he could prove the whole by him ; that he would reserve the remainder, as there were accounts between them. Covert obtained a judgment in the attachment suit for $17,85. An execution was issued, and renewed on the 4th July, 1837, and returned that four dollars was collected thereon. The balance of the judgment was paid on the day of the trial in the common pleas.

The counsel for Miller insisted, that the judgment in favor of Covert could not be set o0¡ as an execution had been issued thereon, and was in force at the time of the trial before the justice; and so the common pleas decided. The counsel for Miller further insisted, that the contract for the hay being entire, and Covert having sued Miller on that contract, and obtained judgment against him for a part of his demand, he was not entitled to set off another part of the same demand in this suit, and requested the court so to charge the jury; who, on the contrary, charged the jury that Covert

p. 488

was not barred by the former suit, but was entitled to set off v 7 the balance of the hay. The plaintiff excepted, and the jury found a verdict for the defendant, on which judgment was' rendered for the defendant. .

«/?. Gibbs, for plaintiff in error.

J. Maynard, for defendant.

By the Court,

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 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. Paine, (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 off-set when sued by Miller.

Judgment reversed.