
    [Philadelphia,
    April 8, 1824.]
    FRANCIS INGRAHAM against JOHN HALL, for the use of MAXWELL.
    IN ERROR.
    Where A. was indebted to B. upon a quantum meruit for services performed, and B. drew a draft of sigiit, for a part of his claim, in favour of C. upon A., which A, refused to pay, but afterwards gave B. a check for the amount of the draft, saying that “ it was in full of the draft,” it was held that B. had a right to credit the check to his own general account for services performed, and was not bound to appropriate the amount to the payment of the draft, which being dishonoured, B. and C. had a right to consider as a nullity.
    Where a suit is brought for the use of a party who is discharged as an insolvent debtor pending the action, the court will permit such action to be marked for the use of the assignees, at the trial of the cause.
    A party cannot, by assigning a part of his claim to another, divide an entire cause of action, nor by any means sustain more than one suit for it; and if two suits be brought a recovery in the first, it is a conclusive bar to the second.
    As to the application of the rule quicquid sohitur, solmtur ad modum solvenlis.
    
    Error to the Common Pleas of Philadelphia county.
    Aa action was brought before Alderman Keppele by the defendant in error, John Hall, for the use of Harrison Hall, to recover a balance of fifty dollars, alleged by John Hall to be due to him by Francis Ingraham, the plaintiff in error upon a quantum meruit, for services rendered by Hall, in the execution of a commission in the case of Miller v. Wilmer in the Supreme Court, a suit in which Ingraham was interested. In the commission John Hall was the sole commissioner named by the parties. The alderman gave judgment in favour of Hall, from which Ingraham appealed; and, upon the trial in the court below, Hall gave in evidence, a letter addressed by himself to Ingraham and Wilmer’s counsel, dated the 1st of August, 1819, stating the manner in-which he should execute the commission, and Ingraham’s answer to that letter, dated August 14th, 1819; in which he gave Hall notice, that he would not. deem himself responsible for any expenses incurred by 
      Hall in .executing the commission in the manner pointed out by him in his letter of the 1st of August, 1819. Hall also gave in evidence a draft, drawn by himself upon Ingraham, payable at sight, for fifty dollars, in favour of Harrison Hall, and part of a letter from himself to Harrison Hull, enclosing the draft, and referring to a former letter of Ingraham’s, which he alleged authorized him to draw for fifty dollars, and stating to Harrison Hall that.he should use money of his, which he had collected, to that amount. Payment of the draft, it was proved, was refused by Ingraham when it was presented. He then gave in evidence the commission, as executed by himself, in the case of Miller v. Wilmer, and rested his case. The plaintiff in error, after opening his case to -the jury, gave in evidence his check, dated the 9th of November, Y819, in favour of John Hall, which was paid at bank; and it was proved, or admitted, that when he gave the check to Hall, he said, “ it was in full of the draftbut that Hall said, “he would not receive it as such,” or that “it was not,” or words to that effect. He further gave in evidence a bill, rendered to him by John Hall, in the following words and figures:
    “ Francis Ingraham, Esq. to John Hall, Dr.
    For his services, including his disbursements in taking depositions under -a commission from the Supreme Court, in the case of Miller v. Wilmer, - $ 125,00
    Cr. By .cash received on account from Harrison Hall, 50,00
    Balance, - - - - - - ' 75,00
    
      January Sd, 1820.”
    He further gave in evidence the docket of Alderman Keppele, and read the entry of the action, and judgment, from which the appeal then in question was had; and also the entry-of another action, in which John Hall was plaintiff and himself defendant; in which twenty-five dollars were claimed hy -Hall, as the balance of his demand for services in executing the above-mentioned commission, but in which no proceedings were had, except the issuing and service of a summons ; and rested his case.
    The defendant in error, in reply to the case made by the plaintiff in error, gave in evidence a letter, dated the 27th of. November, 1819, from Harrison Hall to Francis Ingraham, stating his extreme want bf the amount for which the draft was drawn, and his desire to receive it; and also, a letter from John Hall to In-graham, dated the 11th of October, 1819, at Sunbury, expressing a hope that he would pay the draft: he then concluded his case, claiming a verdict for fifty dollars, and interest from 1819.
    The counsel for the plaintiff in error, on the trial, took several exceptions in point of law to a recovery by the defendant in error.
    1. That as Harrison H&ll had been discharged as an insolvent debtor while the action was pending, it could not be supported in its present form; but the Court permitted the action to be marked, during the trial, to the use of the assignee of Harrison Hall, and instructed the jury that the action so marked might well be sustained.
    2. That the suit should have been brought upon the draft drawn by John Hall upon Ingraham, there being an express undertaking by Ingraham before the draft was drawn to accept it; but the court charged the jury that the action might be sustained (as it was brought) in the name of John Hall for the use of Harrison Hall, for the balance of account claimed, notwithstanding the drawing of (he bill, and the correspondence relating to it.
    3. That the check of the 9 th of November, 1819, for fifty dollars, having been appropriated by Ingraham to the payment of the draft, was a full payment of the sum for which this action was brought. But the court charged, that as at the time John Hall refused so to receive it, or appropriate it, especially as he was not the owner or possessor of the draft, he had a right to credit it to the general account for services performed.
    4. That the plaintiff, John Hall, by assigning a part of his claim, could not subject the defendant to more than one action for what was at first an entire claim. The court agreed with the defendant’s counsel, that a cause of action could not be split up or divided; but charged that the facts gave rise to no such question: but that it might arise, if the subsequent action for twenty-five dollars, brought before the same alderman should be carried on, and could only come in question in that suit.
    The jury found a verdict in favour of the defendant in error for fifty dollars!
    The charge of the court was reduced to writing at the request of the plaintiff in error, and came up with the record.
    The plaintiff in error assigned general errors, and the following specific errors:
    1. That the court charged the jury that the action might be sustained (as it was brought) in the name of John Hall for the use of Harrison Hall, for the balance of account claimed, notwithstanding the drawing of the draft, and the correspondence relating to it.
    2. That the court charged the jury, that the check of the 9th of November, 1819, though appropriated by Ingraham to the payment of the draft drawn by John Hall in favour of Harrison Hall, was not a full payment of the sum for which the action was brought in the Common Pleas, because John Hall refused so- to receive it, or appropriate it, ’especially as he was not the owner or possessor of the draft, and that John Hall had a right to credit it to his general account for services performed.
    3. That the court charged the jury, that the facts gave rise to no such question, as that John Hall, by assigning part of his claim, could not subject the defendant to niorS than one action for what was at first an entire claim; but that it might arise if the subsequent action for twenty-five dollars, brought before the same alderman, should be carried on, and could only come in question in that suit.
    
      Ingraham, for the plaintiff in' error,
    declined arguing the first specific error assigned: as to the second error, he contended, 1. That there could be no doubt as to the right of the debtor to appropriate money that he pays, when he is indebted upon two accounts, or is liable to several claims, to the extinguishment of any one that he pleases; and that" the .right of appropriation devolved upon the creditor, only in cases where' the debtor refused or neglected to make it himself. (Mayor of Alexandria v. Patten, 4 branch, 317. bremer v. Higginson, 1 Mason’s Rep. 324.) Here the payment was made to John Hall, who thereby became th^agent of the plaintiff in error, for the purpose of paying over the money to Harrison Hall, for whose benefit a trust was raised, and it was a breach of good faith on the part of John Hall, to refuse to apply the money to meet that trust. Suppose Ingraham had been the inhabitant of another state, and had remitted this money to Hall, directing him to pay Harrison Hall; could any other creditor have attached it? Could Hall have attached in his own hands? The cases are express that he could not. (United States v. Vaughan, 3 Binn. 394. Stevenson v. Pemberton, 1 Dali. 3. Sharpless v. Welsh, 4 Dali. 279.) Suppose it had been remitted to him, would his having a-claim on another account, enable him to divert the remittance from its destination ? Ingraham had no intention, and did no: act to place this money in John Hall’s hands, unclothed with a trust; it was Harrison Hall’s the moment it left Ingraham’s possession, accompanied by the declaration that he made a particular appropriation of it; and even bankruptcy would not have defeated the right of the creditor to whose use it was destined. Hassall v. Smithers, (12 Ves. jun. 119.) is this very ease. Sir William Grant puts the decision on the principle contended for. Besides, Hall was responsible to Harrison Hall as the drawer of the draft, and because he took his money after he drew it; and Ingraham was responsible to Harrison Hall before the payment, because he had undertaken to accept the draft before it was drawn, and that amounted to an acceptance. (boolidgev. Pay son, 2 Wheat. Rep. 66.) But there was more than an appropriation by Ingraham; for Hall in his bill says, “ by cash received on account from Harrison Hall” — and that amount, if he appropriated the check to his own-use, as well as Harrison’s money, would reduce his demand to twenty-five dollars; so that upon the whole case he could not recover.
    2- There was error in the charge, as assigned in the third specific error; ^or it is not very intelligible to say, where the plaintiff has divided his avowed claim of seventy-five dollars, and brought two actions for it, one to recover fifty, and the other twenty-five dollars, that a question cannot arise in either action, as to the power of the plaintiff to split up an entire cause of action, because it is directly in contradiction to the facts of the case. And why is the principle conceded by the court below, to apply only to the last action ? Clearly the allegata and probata would be as much at variance in the first action as the last, and a plaintiff might recover a sum of thirty dollars upon a note for three hundred dollars, without showing any payments, if such be the law. Suppose In-graham had suffered a judgment by default in both actions, and had then taken a certiorari; both judgments must have been re, versed. The case of Smith v. Jones, (15 Johns. Ilep. 329.) decides the very point.
    
      Ewing, for the defendant in error.
    The plaintiff in error has changed his ground in this court: in the court below, he contended that he owed nothing to the plaintiff upon a quantum meruit, (¡¡fire court informed Mr. Ewing, that they were confined to the record in the case before them.) When John Hall refused to make the appropriation, Ingraham should have demanded his money back again. This is in reality but one claim, and credit is given for fifty dollars paid, and the plaintiff has by his own act reduced the demand to one hundred dollars, fie must therefore lose the twenty-five dollars for which the second action was brought before the magistrate, which is what the court below meant when they said, that they agreed with the counsel for Ingraham as to the division of an entire claim, but that the principle could not be applied to this case.
   The opinion ,of the court was delivered by

Duncan, J.

This was an action brought before Alderman Kep'pele by the defendant in error, John Hall, to recover a balance of fifty dollars, alleged to be- due to John Hall from Ingraham for services rendered. The alderman gave judgment for the plaintiff, and this appeal was then entered. One short view of this case disposes of all the objections. During the performance of these services, John Hall applied 1o his expenses fifty dollars of money collected by him for his son Harrison. Ingraham authorized John Hall to draw on him for this amount, which he did in favour of Harrrison Hall. This draft Ingraham refused to accept. He afterwards drew his check in favour of John Hall; and when he 'delivered it to him, he said it was in full of the draft. John Hall said he would not receive it as such, or that it was not, or words to that effect. By the transcript filed, it appears to have been a suit in the name of John Hall for the use of II. Hall for fifty dollars; less by twenty-five dollars, after deducting this check of fifty dollars, than John Hall’s demand. John Hall brought an action some time after on the same account for twenty-five dollars, but which, it appeared, never had been proceeded on. On the trial, Ingraham gave in evidence an account rendered by John Hall, dated January 3d, 1820; in which he charges him for services, including disbursements, with one hundred and twenty-five dollars; and eredits him with cash received on account from Harrison Hall fifty dollars, and strikes a balance of seventy-five dollars. The objections are, that this was one contract, entire,- and' could not be split; two actions could not be supported for the same demand. All this is most true, and would have been an answer to the second action. The first action for the whole balance, though it was only for fifty dollars, would have been a complete bar to any other action brought for the same demand. There was nothing forbidden in the deduction. He could not recover more than fifty dollars. He' has received less by twenty-five dollars than his real debt. Where a recovery has been had in a suit in which the plaintiff counted for an entire sum, e. g. a balance, the record of such recovery is a conclusive bar to any other action brought, on the same contract. Kess v. Heeble, 6 Serg. & Rawle, 57. This was not an action by Harrison Hall, or for money advanced by him, or on the draft which Ingraham promised in writing to accept, but did not. And admitting the right of Harrison Hall to sue in his own name for the fifty dollars,- he'was not bound so to do‘. He might return it to' the drawer, and so he did; and so the plaintiff in error understood, or why draw the check in John’s name ? Why pay it to- him in discharge of the draft ? It is very reasonable to1 suppose that In-graham intended this as a payment in full, arid very natural for John Hall to say,- “I do' not take this, or account it to be, in full of -the.draft; because, not being accepted, and being returned to me, it became ar nullity; it neveaSad life; and I will credit it in your account:” which he did, am which Harrison Hall ratified by this action, which was for a balance. There could be no balance' without‘deducting this; for nothing else had been paid. For what purpose was this evidence given ? It could only be as proof of payment, and for that payment he is credited. He could not say, “I paid that on the draft, and you misapplied it by passing it to my general credit.” It just amounts to the same thing;, if it was applied, as he said it ought to be applied, to pay the draft,- the balance would be recoverable in this action. It could not first be' applied to pay the draft, and then deducted from the balance. That would be having credit for one hundred, instead of fifty dollars and he has, in fact, credit for it jn the account produced by himself, as for so much advanced by Harrison Hall. The argument is founded, on the assumption, that Ingraham owed John Hall money on two distinct contracts. This was not so. The unaccepted draftof John Hall did not make him his debtor for that fifty dollars. Whatever debt he owed John Hall was one entire debt; therefore the rule quicquid solviíur, solvitur ad modum solventis can have no application. John Hall had no claim on Ingraham, but for these services; therefore there was nothing else to which to apply thé payment. The drawer and the payee, the bill not being accepted, pould cancel it, and restore things to their first state. Indeed they never were altered: the unaccepted bill was no payment to John Hall. It gave him no cause of action. Harrison Hall was not bound to pursue Ingraham on this bill; he might return it to Hall. He did return it ;• and Ingraham has got credit for the fifty dollars on the proper account. It operates as payment of fifty dollars in his favour; and the very party who, he says, ought to have got it, has got it; for Harrison Hall acknowledges by this action for the balance, that there has been this payment, and never could trouble Ingraham on account of this bill; this action would show payment and be a bar. Harrison Hall, on Ingraham’s re-fusal to accept the bill, could have sued John Hail immediately for •the money he had applied in these expenses. As soon as the drawee refused for one moment to accept the bill, his right of action was well vested, and that without returning the bill. Mussen v. Price, 4 East, 147. Aukley v. Handy, 7 Taunt. 312. If so, John Hall’s right of action for his- whole amount was at the same moment vested in him..

Judgment affirmed.  