Miller v. Covert

1 Wend. 487

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Sutherland, J.

The court below erred in permitting Covert, the defendant,. to prove and. set off against Miller, his account.for the balance of the three tons of hay sold and delivered to him in January,.1827. The sale of the hay was by one single indivisible contract. Miller agreed to purchase three tons of hay from Covert, and Covert agreed to sell it to him if he had so much to spare, and in the course of a few days delivered the whole. It is perfectly settled, that if a plaintiff bring an action for a part only of an entire and indivisible demand, the verdict and judgment in that action are a conclusive bar to a subsequent suit for another part of the same demand. The cases of Smith v. Jones, (15 Johns. R. 229,) of Farrington & Smith v. Paine, (15 Johns. R. 432,) of Willard v. Sperry, (16 Johns. R. 121,) and Phillips v. Berick, (16 Johns. R. 136,) are precisely in point. If Covert could not have brought an action for the residue of the three tons of hay, he of course could not avail himself of it by way of off-set when sued by Miller.

Judgment reversed.