
    Edward H. Dutton v. Humphrey Shaw.
    
      Res adjudícala: Same cause of action: Contract: Damages. Where a party has sued and recovered upon a contract for the purchase price of certain staves contracted to he sold and delivered hy him to the defendant, the failure on the trial to prove the delivery of a certain lot embraced within the contract, hy reason of the absence or drunkenness of a witness, and the withdrawal of that item in his claim, will not authorize him afterwards to bring another suit for the same; this item, was not a distinct cause of action, and the former judgment was a final determination of the damages he was entitled to recover under the contract.
    
    
      
      Splitting up causes of action. The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities. It was intended to suppress serious grievances. 
    
    
      Submitted on briefs January 4.
    
    
      Decided January 16.
    
    Error to Saginaw Circuit.
    
      Flanders & Wilber, for plaintiff in error.
    The authorities are all agreed that where the demand is entire and indivisible, a recovery for a part bars a suit for the whole: Town v. Smith, 14 Mich., 348; Mendville v. Welch, 5 Wheat., 286; Chicago, etc., R. R. Co. v. Nichols, 57 Ill., 464; Willard v. Sperry, 16 Johns. R., 121; Sweeney v. Dougherty, 23 Iowa, 291; Flaherty v. Taylor, 35 Mo., 441; Brown v. Fisher, 10 Id., 532; Morgan v. Jacoby, 26 Id., 27; Warren v. Comings, 6 Cush., 103; Walter v. * Richardson, 11 Rich. (S. C.), 466; Smith v. Jones, 15 Johns. R. 229.
    Where the claims, although all due, arise out of separate and distinct transactions, the authorities sanction independent suits, subject, however, to be consolidated by order of the court.
    But where the claims grow out of the same contract, and are all due, they are regarded, by the great weight of authority, both in England and the United States, as constituting but one entire demand or cause of action, and if a suit is brought to recover a part of such demand, and subsequently a second suit for the residue, the first action may be pleaded in abatement or bar of the second: Girling v. Alders, 2 Neb., 617; Bagot v. Williams, 3 Barn. & Cress., 235; Bunnell v. Pinto, 2 Conn., 431; Avery v. Fitch, 4 Id., 362; Penney et al v. Barnes, 17 Id., 419; Miller v. Covert, 1 Wend., 487; Guern
      
      sey v. Carver, 8 Id., 492; Stevens v. Lockwood, 13 Id., 646; Bendernagle v. Cocks, 19 Id., 206; Secor v. Sturgis, 16 N.Y., 548; Camp v. Morgan, 21 Ill., 255; Cassylberry v. Forquer, 27 Id., 170; lucas v. Lacompte, 42 Id., 303; Borngesser v. Harrison, 12 Wis., 606; Sweeney v. Dougherty, supra.
    
    The doctrine of these latter cases seems, upon principle, to be entirely just. It is based upon the maxim, Nemo debet bis vexari pro una et eadem causa. It has always been regarded as a matter of concern to the state, that litigation should have an end, that the individual should not be unnecessarily harassed with a multiplicity of suits: Marsh v. Pier, 4 Rawle, 288-9.
    
      Gaylord & Hanchett, for defendant in error.
    The sole question in the case is the right of defendant in error to recover for two thousand five hundred and forty-six staves sold and delivered to plaintiff in 1863, under a contract made early in that year, whereby said plaintiff in error was to take all the staves that might *be delivered at specified places during that season by defendant in error, to take them at a stipulated price per thousand, payable upon delivery of each lot, which item of two thousand five hundred and forty-six staves was withdrawn from the consideration of the jury in a former action brought by defendant in 1864, for staves delivered under that contract at other times, and not passed upon by them.
    The contract under which such staves were delivered was clearly a severable contract. Neither the consideration was entire nor the subject matter. It was not the sale of an undetermined quantity of staves for a gross sum, nor the sale of a definite quantity for a gross sum or at so much per thousand, but under it the defendant could deliver as many or as few staves as he pleased, and upon the delivery of every lot of staves was entitled to his pay for that lot, and could have brought an action at once therefor : 2 Par. on Cont., (3 Ed.) p. 30 et seq.; Dibol & P:lank v. Minott, et al, 9 Iowa, 403; Badger v. Titcomb, 15 Pick., 409; Perkins v. Hart, 11 Wheat., 237.
    This contract is not governed by the law governing entire-ties.
    
      The lot of staves in question constitute a distinct cause of action, and not having been adjudicated upon in the former suit, is not barred by that suit.
    This is distinctly decided in the following cases: Badger v. Titcomb, 15 Pick, 409; Sparhawk v. Wills, 6 Gray, 163; Andover Savings Bank v. Adams, 1 Allen, 28; Atkinson v. Atkinson, 8 Allen, 15; Byrket v. State, 3 Ind., 248; Corby v. Taylor, 35 Mo., 447.
    
      
       judgment in ejectment is prima facie evidence against a covenantor of warranty if it affirmatively shows a state of facts amounting to a breach of warranty: Masonv. Kellogg, 88 Mich., 132. Estoppel by previous judgment depends upon the fact that the merits have been passed upon: Ffield v. Edwards, 39 Mich., 264. The doctrine of res adjudícala does not apply where it does not appear that the same cause of action is involved: McMwan v* 
        Bigeloio, 40 Mich., 215; see Phillips v. Jamieson, 51 Id., 153. The dismissal of a bill on the merits bars the complainant from introducing matters involved thereby, in any other litigation on same subject matter: Adams v. Cameron, 40 Id., 506; Jacobson v. Miller, 41 Id., 90; Baxter v. Aubrey, Id., 13. An uncontested point is not adjudicated: Allen v, Duffie, 43 Id., 1. See^iwi, Beam v. Macomber, 455.
    
    
      
       A fraud cannot be separated into two causes of action and one settled for and the other left open; it is and must be an entirety: Allison v. Connor, 36 Mich., 283. A cause of action under a special contract cannot be so divided so that recovery can be had partly on a general count and partly on a special: Beecher v, Pettee, 40 Mich., 181. Cited in Mw'ehouse v. Baker, 48 Mich., 335.
    
   Campbell, J.:

In this case Shaw had sold and delivered to Dutton several lots of staves, all at a price fixed by a contract, whereby Shaw was to deliver and Dutton to accept all the staves to be got out by Shaw in 1863.

After all the staves had been delivered, Shaw sued Dutton upon the contract, and the case went to judgment. During the trial Shaw failed, by reason of the absence or drunkenness of a witness, to prove an item of two thousand five hundred and forty-six staves, and that item he withdrew from the jury. He now sues Dutton to recover for the item thus withdrawn.

This item being within tbe- former declaration, and being a part of the articles furnished under a single contract entirely executed, cannot, on any known principle, be distinguished from any other case in which a party has failed for lack of proof. It was not a distinct cause of action, and the former judgment was a final determination of the damages to which Shaw was entitled under the contract. The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities. It was intended to suppress serious grievances.

The court erred in holding that this item was still open to litigation. The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred,  