
    PATRICK O’BEIRNE, Plaintiff and Respondent, v. JAMES T. LLOYD, Defendant and Appellant.
    The commencement and pendency of an action for the recovery of part of an entire demand, does not extinguish the right of action for the balance.
    The pendency of such an action can only be pleaded in abatement to a subsequent action for the recovery of the balance of the demand.
    If, however, such action has terminated in a judgment, that judgment extinguishes the right of action for the balance of the demand, and may be pleaded in bar of a subsequent action for such balance.
    If such plea is interposed to a subsequent action foe the balance of an entire demand, the plaintiff may discontinue the first suit, arid the plea would then fall.
    It is necessary that the pleas to the second action should show whether the pendency of the former action is relied on as an abatement to that existing action, or as a defence in bar to the cause of action.
    
    An answer pleading the pendency of a former action in bar, presents no defence. Such pendency is not a bar, and the answer will not enure as a plea in abatement.
    A plea in abatement of another action pending is radically defective, if it does not allege such action to be still pending.
    The entry of a formal order of discontinuance is necessary to discontinue an action.
    A mere consent signed by the parties consenting to such discontinuance, and that an order to that effect be entered, is not sufficient.
    The words, “plaintiff’s demand in this action,” in an agreement between the parties to an action entitled in the action, the complaint having been served, and the agreement containing no qualifying words, refer to the demand in the complaint.
    Oral evidence is inadmissible to show that any other demand was intended, there being no fraud, accident, or mutual mistake.
    Before Monell, Jones, and Fithian, JJ.
    
      [Decided February 12, 1869.]
    This action was tried before Mr. Justice Barbour and a jury.
    The action was brought to recover the sum of four hundred dollars for services rendered by the plaintiff in drawing a certain sheet or section of a map of the city of Buffalo, in pursuance of a contract made October, 1865, by which contract plaintiff was employed to make maps of Buffalo and other cities in sections of certain dimensions, for each of which sections, when made and delivered, plaintiff was to receive §400. On the 8th February, 1866, plaintiff made and tendered section No. 4 of a map of the city of Buffalo to defendant, who refused to accept or pay for the same.'
    On the 10th February, 1866, plaintiff commenced an action against defendant to recover the price of several sections of maps previously made and delivered by him to defendant under the same contract. That action was not prosecuted to judgment. It was settled and compromised between the parties before judgment.
    Section No. 4 was not included in that action. This action is brought to recover the contract price of section No. 4.
    The defense set rip was that the demand in this action was included in the first action brought by plaintiff against defendant, and was therein settled and paid on the 24th of March, 1866.
    The principal question involved is, whether or not the claim was embraced in or barred by a settlement had between the parties on the twenty-fourth of March, 1866.
    The defendant’s counsel moved to dismiss the plaintiff’s complaint on the ground:
    That the demand in suit had been compromised and settled in the suit commenced February 10, 1866; that the plaintiff’s account had been disputed by the defendant, and that the plaintiff had abandoned the demand in that suit; that a sum fixed had been paid; that this demand was due when the other suit was commenced, and that claim and settlement was a bar to this action.
    The Court denied the motion.
    The defendant’s counsel requested the Court to charge the jury, if they found that the disputed item was not embraced in the former settlement, and that the plaintiff totally disregarded this section and agreed to furnish it for nothing, and that the claim of the plaintiff was due at the commencement of the other suit, and that the parties agreed upon an amount which' was paid by.defendant, that then the plaintiff could riot recover in this action.
    The, Court refused so to charge.
    The jury found a verdict for plaintiff.
    
      
      Mr. Robert Sewell for appellant.
    The defendant had a right to show that the settlement embraced all that he owed the plaintiff at the time. It was not an effort to vary or to contradict the written instrument, but to explain it and to show that it embraced the disputed items. Parol evidence is admissible to elucidate a written agreement, and to explain a receipt, and show to what demand it is applicable. The doctrine prevails as to all written acknowledgments and receipts, that the transaction which they are designed to evince, may be proved by the parol testimony of witnesses, without producing the receipts or accounting for the absence of them. Parol evidence is not admitted to explain or, contradict the terms of the written contract, but only to ascertain what those written terms are (Fish v. Hubbard, 21 Wend., 26; Brooks v. White, 2 Metcalf, 283; Speake v. the U. S., Cranch, 28; Southwick v. Hayden, 7 Cowen, 334).
    The Court erroneously refused to dismiss the complaint.
    
      Mr. Francis G. Salmon for respondent.
    The evidence showed that the demand in suit was not included in the former action, and had not been settled or compromised therein; that the sum so paid was paid in the settlement of the former suit, which did not include the demand in this suit.
    The refusal to charge was correct. There was no evidence whatever in the case that “ plaintiff, on the settlement, totally disregarded this section,” and agreed to furnish it for nothing.
    The amount paid in settlement of the first action was an accord and satisfaction of so much only of the plaintiff’s claim as was included therein (Cashman v. Bean, 2 Hilton, 340).
    The denial of motion for a nonsuit, and the refusal to charge as secondly requested, were correct.
    The first action was not prosecuted to judgment, and is not therefore res adjudicata.
    
    The settlement between the parties only extinguished so much of the plaintiff’s claim as was included in the action settled (Cashman v. Bean—supra).
    
    A recovery in a former action to be a to a subsequent action must be a recovery under a judgment of a court (Cashman v. Bean—supra).
    
    But even if the rule of law be that an action brought to recover only a portion of a, claim arising out of a contract not prosecuted to judgment is a bar to a subsequent action for the remainder of said claim due when the first action was brought, the rule does not apply in this case.
    The section of map in suit was completed under a new and distinct contract, as is shown by the uncontradicted testimony of plaintiff.
   By the Court:

Jones, J.

The commencement of an action for the recovery of part of an entire demand does not extinguish the right of action for the balance.

If such action proceed to judgment, the judgment would be a bar to any action brought to recover the balance of the demand. But the mere pendency of a prior action for part of an' entire demand can be pleaded, in a subsequent action for the balance of such demand, in abatement only (Secor v. Sturgis, 16 N. Y., 548).

If such plea in abatement is interposed to the second suit, the plaintiff therein may discontinue the first one, and thereupon the plea fails (Swart v. Borst, 17 How. Pr., 69).

In the present case the stipulation entered into in the former action, and its full performance, entitled either party to have a formal order of discontinuance entered. But no order of discontinuance has been entered, therefore that former suit must be regarded as still pending (Averill v. Patterson, 10 N. Y. Rep., 500).

If, then, the pendency of that former suit had been pleaded in abatement to this one, this complaint must have been dismissed on the ground of such pendency, unless the plaintiff had, at least, before noticing this action for trial, entered an order of discontinuance of the first action.

But the defendant did not plead such pendency of the former action in abatement. He pleads it in connection with other matters as a bar.

Howliere in his answer does he aver that it.is still pending; on the contrary, he treats it as at an end, and completely disposed of.

Formerly great strictness was required in pleas of abatement, they being dilatory pleas; even under the Code, sufficient strictness should be required, to show whether he relies on the matters pleaded as an abatement to the existing action, or as a, defence in bar to the cause of action.

The answer in this action not only does not show that the pendency of the former suit was relied on in abatement, but shows that he relied on the fact of the commencement of that suit in connection with other matters as a bar; and as a plea in abatement, the answer is radically defective in omitting the material allegation of its still continued pendency.

H he had pleaded said pendency in abatement, the plaintiff would have been put in position to destroy the effect of the plea, by entering a formal order of discontinuance of the first action. As, then, the pendency of the first suit is not a bar, and has not been pleaded in abatement to this action, it forms no obstacle to the plaintiff’s right of recovery.

The remaining question is as to the exclusion of oral evidence offered, to show that the demand in suit was included in the compromise and settlement of the first suit.

The terms of that settlement are evidenced by a written agreement, in which there is no ambiguity or uncertainty. Oral evidence is, consequently, inadmissible to alter or vary that agreement, no fraud, accident, or mutual mistake being shown.

That agreement was entitled in the first action, and commences with the following language: It is hereby stipulated and agreed by and between the parties hereto, that the amount of plaintiff’s demand in this action be and hereby is fixed at the sum,” &c.

It is urged that under this language oral testimony was admissible, to show what the plaintiff’s demand in the action was. His complaint, which was in writing, and which had been served before the settlement was made, showed what the demand in the 'action was.

The demand claimed in the complaint, and that only, is the demand in this action.” That is the only demand to which the words demand in this action” can possibly refer. .What that demand was is shown by the written complaint, and it cannot be altered or varied by parol evidence.

Judgment affirmed, with costs.  