
    Wilbur A. Welch, Appellant, v. The Buchans Soap Corporation, Respondent. Action No. 2.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Former adjudication — Adjudication as bar to all matters that might have been litigated — Splitting cause of action — Contracts in general.
    Where defendant bought 400 tierces of tallow to be delivered in January and the contract was afterward modified so as to provide for the delivery of part in February, the original contract was not thereby rescinded and two new and separate contracts substituted ■therefor but the contract remained an entire contract; and where thereafter the defendant declined to receive the goods' and the 400 tierces were sold by plaintiff for defendant at one time in March, resulting in loss, and plaintiff brought separate actions to recover, one for the loss on 250 tierces which were to be delivered in January, and the other for the loss on 150 tierces which were to be delivered in February, held, that the recovery in one of the actions was a bar to the other.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of ISTew York, twelfth district, borough of Manhattan.
    Frank H. Richmond, for appellant.
    Graham & L’Amoreaux (Ralph Polk Buell, of counsel), for respondent.
   Gildersleeve, J.

The action 'was tried on an agreed statement of facts, and the complaint was dismissed on the merits. Plaintiff appeals. On ¡November 16, 1906, defendant contracted with plaintiff for the purchase by defendant from plaintiff of 500 tierces of tallow, 100 to be delivered in ¡December and 400 in January. The 100 tierces were taken and paid for. On January 15, 1907, before the time set for the delivery of the 400 tierces; defendant sought to have a resale of the same for its account, and was informed" by plaintiff, on January 17, 1907, that, owing to the condition of the market, such a resale would result in a considerable loss to defendant, and this proposition was abandoned. The original contract remained in force, except that a change was made as to the time of delivery; and it was agreed that 250 tierces should be delivered at the end of January and the remaining 150 tierces towards the end of February. Thereafter the 250 tierces and the 150 tierces were duly offered to defendant and rejected by it. They were, thereafter, and on March 9, 1907, sold by plaintiff for defendant’s account; and the sale realized a sum considerably less than the price fixed in the contract between plaintiff and defendant. Plaintiff, on April 19, 1907, brought an action for the damages resulting from the resale of the 250 tierces and recovered a judgment for the whole amount claimed, which judgment was paid and satisfied of record. Plaintiff, at the same time, i. e., April 19, 1907, brought the present action for the damages resulting from the resale of the 150 tierces. The 250 tierces sued upon in the first action and the 150 tierces sued upon in this action were each part of the same contract between plaintiff and defendant. The court held that the recovery and satisfaction of the judgment in the first action constituted a bar to the present action and dismissed the complaint on the merits. The general principle is that several claims already due under the same contract shall be deemed one entire demand or cause of action. Bendernagle v. Cocks, 19 Wend. 207. In order to avoid a multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions; and, although, when several claims, payable at different times, arise out of the same contract or transaction, separate actions can be brought as such liability occurs, still, if no action is brought until more than one claim is due, all the claims that are due must be included in one action; and, if an action is brought when more than one claim is due, a recovery in that suit will be an effectual bar to a second action brought to recover the other claims that were due when the first action was brought. Reformed Protestant Dutch Church v. Brown, 54 Barb. 191; Jex v. Jacob, 19 Hun, 105; Samuel v. Fidelity & C. Co., 75 id. 308, Pakas v. Hollingshead, 184 N. Y. 211. In the case at bar, as we have seen, the resale of the whole 400 tierces took place at one time, and occurred prior to the commencement both of the first action .and the one at bar. The plaintiff claims that the original contract of Fovember 16th was merged and extinguished by novation, and that a separate contract was thereupon made by novation, whereby plaintiff agreed to deliver and defendant agreed to take 150 tierces in the latter part of February, and that “ the novation produced two distinct, several, severed, separate contracts, one for the delivery of 250 tierces of tallow in January, and the other for the delivery of 150 tierces in February.” The statement of facts does not sustain this contention. The contract of Flovember 16, 1906, is in writing, and sets forth the purchase by defendant from plaintiff of “ 500 tierces of tallow at 7fc, 100 tierces of the above to be delivered during the last week of December, 1906, 400 to be delivered during the last week of January, 1907.” Thereafter, and on January 17, 1907, defendant’s president proposed to plaintiff to deliver 250 of the 400 tierces in the latter part of January, 1907, and the remaining 150 tierces in the latter part of February, instead of delivering the entire lot of 400 tierces in the last week of January, 1907, as provided in said contract of November 16, 1906. This proposition was accepted by plaintiff in a letter dated January 18, 1907. There was no new, independent or separate contract-created by this agreement. Both the lot of 250 tierces and that of the 150 tierces had already been sold by plaintiff and bought by defendant by th^ contract of November 16, 1906. There was simply a modification of that contract of November sixteenth, by which modification the.400 tierces already bought by defendant were to be delivered in two installments, instead of being all delivered at the same time as originally contemplated by the said contract. As was said in the case of Pakas v. Hollingshead, 184 N. Y. 214: “ The fact that the property was deliverable and the purchase money payable at different times in the future did not necessarily deprive the contract of the character of entirety or make it other than a single one in respect to all the goods embraced in its terms, * * * there can be but one action for damages for a total breach of an entire contract to deliver goods, and the fact that they were to be delivered in instalments from time to time does not change the general rule.” Plaintiff’s own letters clearly indicate that plaintiff regarded the contract of November sixtéenth as in full force some time after the time of the alleged rescission and novation and as being the contract upon which plaintiff based his claim. It seems to us that the court below reached a correct conclusion in its disposition of this case, and that the judgment should be affirmed, with costs.

Guy and Bruce, JJ., concur.

Judgment affirmed, with costs.  