Ryan v. Waukesha Spring Brewing Co. , 1896 Ill. App. LEXIS 806 ( 1896 )

Mr. Presiding Justice Gary

delivered the opinion of the Court.

Two appeals of the same title and involving the same question, are here. The cases were tried without a jury. The question is upon these facts. In November, 1894, the president of the appellee was told by the appellant—a cooper—the price, §2.09, of half barrels, delivered in Waukesha.

On each of the days, December 14, 17 and 18, 1894, on orders by the appellee, the appellant shipped half barrels to the appellee, on a credit of ninety days.

June 17, 1895, the appellant sued the appellee for the price of the December 18th order, and recovered judgment.

Is that judgment a bar to the separate actions to recover for the half-barrels shipped on the orders of the 14th and 17th?

An entire cause of action can not be split and several actions maintained upon it—that is conceded.

The case does not show that when the price was given, the term of credit was also; but in the nature of the transaction, the price, place of delivery, and term of credit, must have been agreed upon before orders were given.

March 15, 1895, a suit might have been brought for the first shipment; March 18, 1895, another suit for the second shipment; and March 19, 1895, a third suit for the last shipment. The pendency of either suit would not have been in abatement of, or a judgment in it a bar to, either of the others.

The lapse of time would not have coalesced three independent and individual causes of action into one, had suits been begun as stated. How why does the lapse of time have the effect of so coalescing if no suit is begun ? Why, because Casselberry v. Forquer, 27 Ill. 170, so decides, and there is no escape from it. Should the question in that case ever again come before the Supreme Court, and the case be exactly in point, it may be adhered to; but it is not exactly in point here, as it seems to be explained in McDole v. McDole, in 106 Ill. 452. It is there treated as a single promise to pay one entire sum of money, upon a single consideration, in installments, and as holding that more than one installment due, is but one cause of action. Here the promise to pay for each shipment is a separate promise, based upon a separate consideration. Hor does this case resemble Lucas v. Le Compte, 42 Ill. 303, which only holds that a running account with no time of payment for any item in it agreed upon, is an entire cause of action. So is the law generally held. Black on Judgments, Sec. 736.

Without copying, I refer to Secor v. Sturgis, 16 N. Y. 548, for an elaborate statement of what distinguishes one entire cause from several separate causes of action; the sum of it—so far as pertinent here—being that “each contract affords one and only one cause of action.” An illustration of that principle is found in Cashman v. Bean, 2 Hilton, 340, where sales of goods at different times upon six months credit, were held to constitute separate causes of action, though all the money was due when suit was commenced.

These cases having been tried by the court, this court will do what that court should have done, and enter final judgments that the appellant recover in each case with costs; the judgments appealed from being reversed.