
    ROCKINGHAM,
    SEPTEMBER TERM, 1817.
    DAVID ROBINSON ET AL. versus RICHARD CROWNINSHIELD.
    Where aspeeial contract was made by A and B with C, to keep for him in a prescribed manner a number of sheep : and C had prosecuted and recovered against them for notin all respects fulfilling the contract — the judgment in that suit offered in evidence by him to defeat a subsequent action of theirs for the keeping, is not a conclusive bar. But they are entitled to nothing, on either the speciaíor general counts in their declaration, without shewing a substantial performance of that part of the agreement on which their action is founded,
    ASSUMPSIT for the keeping of a number of sheep belonging to the defendant. One count was upon a special agreement as to the manner and price of feeding and superintending them ; the other was general for the hay, grain, and labor furnished.
    The cause was tried here at the last term, upon the general issue. The plaintiffs proved the special agreement declared on. It was in writing, dated November 14, 1815, and amounted in substance to an obligation by Crowninshield to pay the plaintiffs two dollars fifty cents per head a year for keeping one hundred full blooded Merino sheep, reckoning two dollars for winter and fifty cents for summer. They were to be “ pastured on high ground — well salted — housed in storms — fed on the best of hay,” and “special care at lambing.” Prom the first of January half a pint of oats at C.’s expense was to be given those likely to lamb ; none were to be over four years old ; and C., whenever dissatisfied, was to be at liberty to take them away. In March, 1816, C. becoming dissatisfied, removed the sheep. Many witnesses were called to prove a performance of the agreement. On the contrary, the defendant produced much testimony to shew breaches of it: and introduced also the record of a former judgment, recovered by him against the plaintiffs for damage sustained by their failure to fulfil this same agreement.
    , The court directed the jury, that said judgment was not a conclusive bar to the recovery by the plaintiffs in the present action ; but if, upon the whole testimony, they believed the agreement had not been substantially fulfilled as to the keeping of the sheep, the plaintiffs were not entitled to a verdict on either count in their declaration : but if they were satisfied of the contrary, they would give them such sum as the contract warranted.
    The jury found for the plaintiffs one hundred dollars, and the cause was continued for further advisement upon the propriety of the above direction.
    
      J. Lawrence, Butler and Hale for the plaintiffs.
    
      Dunlap and J. Smith for the defendants.
   Woodbuby, J.

delivered the opinion of the court.

A former judgment between the same parties on the merits is undoubtedly a bar to any subsequent action between them, where the same point is in issue

But if the gist of the actions be different, though the parties are the same, such judgment is not conclusive .

Nor, when the actions are founded on the same cause or contract, but instituted to enforce distinct and independent provisions of it,.is the former judgment a bar. This results. from the reason before mentioned, that the gist of thé actjorjs js different: as much so as if grounded on different contraCts

Equally different we apprehend to be the gist of the ac-tioiis between the present parties. Though the declarations sn¡ts are predicated on the same contract, yet that contract contains stipulations, not only distinct, but in favor of different persons. The record in the first action shews clearly that C row ni ns hi eld sued the Robinsons on the stipulations in his favor; and alleged for damages the leanness and death of some of his flock, in consequence of their not fulfilling those stipulations. The record of the present suit shows that the Robinsons here persecute Crowninshield on the stipulations in their favor, and declare merely for the money due on account of the keeping The gravamen of the two actions is consequently different, and the judgment in the first on the face of it not a bar. On the trial, therefore, we intimated to the plaintiffs the inadmissibility of the evidence they proposed to introduce, to show that the jury in estimating the damage in the former suit were directed, as they should have been, to make no deduction on account of the value of the keeping of the flock. Because, though similar testimony has been permitted in some cases, it was when from the face of the former record it appeared that the dam? ages claimed in the second might have been allowed in the first action. 1 Es. C. 401, Seddon vs. Sutop. — 6 D. & E. 607, S. C. 5 Mass. Rep. 339, Webber vs. Lee.

But here the value of any keeping furnished by the plaintiffs in conformity to their contract — which contract is the rule of damage in this case — could not legally have been deducted in the other, where the rule of damage was the difference between the situation and value of the flock, as it was, and as it should have been when taken away. Andas observed in 7 Hen. 6, Fol. 20, it would “seem a marvellous thing to intend a matter upon a verdict necessarily, of whiph nevertheless the inquest had not power to enquire/’

It may be suggested, however, that the record iu the first action demonstrates conclusively some breach by the plaintiffs of the special contract between them and the defendant, and that if guilty of any breach they cannot recover iu the present suit. We now admit, and we directed the jury, that as a general principle the plaintiff iu an action founded on an express and indivisable contract cannot recover either upon a general or special count, unless he show on his part a substantial compliance with the contract as made, or some sufficient excuse for his non-compliance. 5 John, 85,- — 4 Mass. Rep. 518, 653. — 12 John, 165. — 8 Mass. Rep. 345. — 5 East 316. — 5 B. if P. 140.

But it does not follow, from the circumstance of the agreement being all contained in one instrument, that all the parts of it are dependent and inseparable. 6 East 564. Whether so or not, is to be determined by the intent’of the parties, as evinced by the language and. nature of .the whole contract. Chit. PL 311. — 1 Saund. 320. And however strongly courts may in modern times incline against constructing covenants to be independent, 12 John. 166. — l East 619, yet cases frequently arise where any other construction would not only violate the spirit of the covenants but produce manifest injustice That the stipulations in , ij- • the contract between these parties, were to a certain extent divisible and independent, we entertain no doubt. The defendant has himself so considered them, by instituting his suit against the plaintiffs without first paying them for the keeping, under a supposition that his right of action did not depend upon his first fulfilling that obligation to the plaintiffs. On the same principle, the plaintiffs are entitled to recover against the defendant, so far as they have substantially performed the agreement, notwithstanding they have been found liable to him for destroying some of the sheep, and for not feeding others in strict conformity to some of their stipulations. It is well settled, that where mutual contracts go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent,C/t. P ■ 314. — >Saunders 320, and the cov- ' enants in such case are to be regarded pro tanto as independent. 7 Johnson 249. — 1 Hen. Bl. 273, Boon vs. Eyne. — 6 D. & E. 570. Campbell vs. Jones. — 10 East 295, Ritchie vs. Atkinson. — 12 do. 389, Davison vs. Gwyn. A different construction might render the damage sustained very unequal, as the covenant on one part may extend to “ the whole root'of the transaction,” and on the other part to a mere branch of it. The defendant’s loss might have been the whole of his flock, and the plaintiffs’ their keeping only for a few weeks ; or the defendant’s loss only the negligent management of one sheep, and theirs the stipulated feeding and superintendence bestowed on ail the others for many months. But by the present construction the defendant recovers all the damage he sustains, and the plaintiffs obtain from him payment for the keeping of only so many of the flock as the jury were satisfied the plaintiffs had kept in substantial conformity to the contract. The cases of Davison vs. Gwyn, and of Ritchie vs. Atkinson, very strongly illustrate this point.

Admitting, then, the former judgment to be conclusive evidence of a breach by the plaintiffs of some of the stipulations in the contract declared on, it is so by no means as to all of them, or as to any one of them in relation to the whole flock.

Let judgment therefore be entered on the verdict. 
      
      0 > Peakep ev. 346-
     
      
      
        —jUuX'jrrp. m
     
      
       Richardson, C. J. being of counsel, did not sit.
     
      
      <3'i r^pin.^capt£r fiat-da Johnson 24.
     
      
       camp.jv. p. 55, Champion vs. Short.
      
     