
    Taylor v. W. & A. Chambers.
    Where, in an action brought by the assignee upon a promissory note, without words of negotiability, the defendant pleaded a failure of consideration, alleging how the failure occurred, to which the plaintiff replied, averring 11 that the matters set forth by defendants as cause of failure of consideration of said note, have been adjudicated by this court at the November term, A.D. 1852, in a certain cause, wherein A. & B. (the payees of the note) were plaintiffs, and the present defendants were defendants,”- which replication was denied by the defendants, and sustained by the proof.
    
      Held, that the adjudication set up in the replication, was a bar to the defence in ■ this suit
    
      Appeal from the Muscatine District Court.'
    
    This was an action brought by tbe plaintiff in tbe District Court of Muscatine county, to recover tbe amount of a promissory note, without words of negotiability, for $100.00, made by defendants, payable to Maston & Parrish, dated July 21, 1851, and indorsed in blank to plaintiff. Tbe answer denies indebtedness, and also avers, in substance, that tbe defendants executed tbe note to Maston & Parrish, in part payment for a raft of logs bought of them ; that tbe raft was bought while in tbe Mississippi River, as good, merchantable logs, for the sum of $1,571.45 ; that part of the purchase money was paid down, and all the balance had been adjusted, except this note; that on taking the logs out of the river, they were found to be rotten and hollow; that taking the whole lot together, they were damaged twenty per cent.; and that on account of the damaged state of the logs, the consideration of the note had entirely failed. To this answer, the plaintiff replied, averring, among other things, that the matter set forth by defendants as cause of failure of consideration of said note, have been adjudicated by this court, at the November term, A. D. 1852, in a certain cause, wherein Maston & Parrish were plaintiffs, and W. & A. Chambers were defendants. The defendants rejoined, denying the facts stated in the replication. On the trial before a jury, after the plaintiff bad offered tbe note in evidence, tbe defendants proved that tbej bad purchased of Maston & Parrish,, a raft of logs, represented to be good, merchantable logs, amounting to $1,600.00; that part of tbe purchase money was paid down, and that in payment for tbe balance, eleven notes, of one hundred dollars each, were executed and delivered to Mas-ton & Parrish ; that after the logs were taken out of the river and examined, it was found they were not good, merchantable logs; that defendants had sustained damage to the amount of twenty-five per cent: on the whole purchase; and that the whole of the purchase money had been paid, except the note on which this suit is founded. This being all the evidence on the part of the defence, the plaintiff then introduced the records of the court, and showed that in a former suit brought by Maston & Parrish, against the defendants, on one of the notes given for the same raft, the same defence had been set up, and judgment rendered for the plaintiffs for the sum of $78.72. As appeared from the record, the answer of the defendants, in the case of Maston & Parrish against them, alleged that the note in that suit “ was given for a raft of saw logs, numbering one thousand ; and that plaintiffs warranted said logs to be good, merchantable logs. Defendants aver that said logs were unsound and unmerchantable; defendants claim a deduction of twenty per centum on the price of said logs, which price was on the whole raft about eleven hundred dollars.” Upon this testimony, the plaintiff claimed, that the defendants were precluded from setting up the same defence to this action, which was overruled by the court, and the jury rendered a verdict for the defendants, upon which judgment was entered. The plaintiff appeals to this court, and here assigns for error, the ruling of the court above stated.
    
      J. Scott Mchman, for appellant,
    contended that the defendants having set up this defence in the action brought by Maston & Parrish, and having been allowed a deduction in that suit, cannot set up the same matters again between privies in law to the same transaction. This question will not allow of argument. It matters not wbat, or wbetber any amount, was allowed on tbe claim of defendants, if it bad been set up and adjudicated. There must be an end of litigation, and a party cannot divide his claim (and there is no pretence, except in the argument of counsel, that he ever did divide it), so as to have several suits, where one will suffice. This is the law upon general principles. 1 Greenl. Ev., §' 523 el seq.'; 4 Phill. on Ev. 16; Sill v. Boocl, 15 •Johns. 229 ; see Code, § 1740, authorizing set-off or cross claims, and section 1798, which says, that “ when a set-off is proved, a balance shall be struck between it and the demand of the plaintiff, for which balance, judgment shall be rendered in favor of the party entitled thereto. _ See, also, sections 1801-3.
    
      Oloud & O'1 Connor, for appellees:
    The principal point Contended for by plaintiff, and upon which he seeks to have the judgment below reversed, is, the ruling claimed to have been made by the court, that the record in the case of Mas-ton & Parrish against the defendants, because of want of privity, was not admissible. Now, the record shows no such ruling. All that was ruled, and all that was claimed by defendants, below, Was, that this record, on the fact that defendants had made the same defence in the previous suit, and obtained a pro rata deduction, was not sufficient to bar them from insisting on the same defence in this action. The deduction of the $22 in the Maston & Parrish case, and the whole amount in this suit, do not together give them anything like what they proved, viz : twenty-five per cent, on the whole amount of the sale. Have We not proved our defence? We think we have proved it by -our answer, which is under oath, and is not replied to, in accordance with the provisions of the Code, sections 1844^48. We have also proved the defence by one of the defendants, who was, as appears by the record, a competent witness; he proves twenty-five per cent, on the whole purchase. We do not deny that there was privity of interest and contract, but we insist that the privity, is an additional reason why tbe plaintiff should be in a position to reply to our answer. In that respect lie stands in just tbe same position that Mas* ton & Parrish would, were they plaintiffs. Code, § 951. As to consolidating, it was not in our power, we had to defend, and we could defend only what the plaintiffs brought us into court upon. We do not say that the defendants must have consolidated, but say that we could not. We refer to the same cases as the plaintiff, Smith y. Jones, 15 Johns. 228, and Sill y. Rood, 15 lb. 230.
   Isbell, J.

A determination of what is meant by the language used in the answer in the case between Maston & Parrish and the defendants, we think must of itself be decisive of this case.

What claim did the defendants set up to be there adjudicated? Clearly they claimed, on account of the damaged state of the logs, “a deduction of twenty per centum "on the price of said logs" and not on the amount of the note then sued upon. That suit was. between the original parties to the note now sued upon. The defendants set up and'caused their demand for damages — their whole demand- — -to be adjudicated; and now afterwards, to talk of their right to sever it, is idle. When once adjudicated, and the amount deducted from the note in that suit, it no longer existed. Much has been said about the privity of the parties in this and that suit. The statute creates the privity. It authorizes the setting up of defences had against the assignor, but not those that have ceased to exist.

Judgment reversed, and cause remanded.  