O'BEIRNE against LLOYD

O’BEIRNE against LLOYD. New York Superior Court ; General Term, January, 1869. Pleading.—Former Action Pending.—Compromise. Parol Evidence. If the defendant relies upon a compromise of a former action for the same cause, which has neither been discontinued nor has proceeded to judgment, he must plead another action pending. Such facts are not available to defeat the second action, merely upon allegations that the former action included the cause of action upon which the present suit was brought, and that it was settled by compromise, and the amount paid. Where the defendant relies upon the compromise of a former suit, evidenced by a written stipulation which is not ambiguous or uncertain, parol evidence to explain what the compromise included, is not admissible. If such stipulation refers to the amount of plaintiff’s demand in the action, what that demand was must be ascertained by a reference to the complaint in that action. Appeal from a judgment. This action was "brought by Patrick O’Beirne against James T. Lloyd, to recover for services in making a map under a contract between the parties. It appeared that in October, 1865, the defendant employed plaintiff, under a written contract, to make certain maps in sections, for each of which sections plaintiff was to receive $400. The defendant afterward countermanded the making of the maps, but plaintiff completed several sections, and sued in the supreme court to recover therefor. That suit was commenced on February 10, 1866. The complaint in it alleged that the defendant was, on December 20, 1865, indebted to the plaintiff in the sum of $3,512, on an account for services, &c., referring to the agreement in question, and that various sections of the maps were delivered according to the contract, on various days specified, the last of which was on or about December 19, 1865. It also alleged extra work done down to December 20, 1865, and demanded judgment for $3,512. In the present action, which was commenced in 1867, the plaintiff alleged that in or about the month of December, 1865, and at other times, the defendant employed him to make a map, and that on February 8, 1866, he tendered to the defendant a section thereof, and demanded payment, which plaintiff refused. Wherefore he brought this action to recover the sum of $400, contract price. The answer alleged that the plaintiff* had made maps for defendant in 1865, but he had delivered no section or sections since December 19, 1865. It then alleged the bringing of the former action by the plaintiff, and that ' on March 24, 1866, the suit was settled and the claim of the plaintiff compromised at the sum of $3,000, which defendant had paid, and alleged that the demand made in the present action was included in the former action, and had been paid. The answer also contained denials of various material allegations of the complaint. The cause was tried before Mr. Justice Babbottb and a jury in February, 1868. The defendant proved the commencement of the former action, and put in evidence the complaint therein, ■and proved that that action was settled pursuant to a stipulation, entitled in the cause, and by which it was agreed between the parties that the amount of plaintiff’s demand in the action be fixed at the sum of $3,000, and plaintiff’s costs at $250 ; that the defendant pay on the day of executing the stipulation the sum of $250, and the residue in weekly installments ; that so long as the plaintiff should keep the foregoing stipulation by making the payments, all proceedings in the action should be stayed ; that if he should fail to make them, defendant might enter judgment for the amount fixed by the stipulation, less the amount that plaintiff might have paid thereon, such judgment to be entered on an aifidavit of plaintiff’s attorney that such default had been made. Defendant’s counsel moved to dismiss the plaintiff’s complaint on the grounds that the demand in suit had been compromised in the former action ; that it was due when the other suit was commenced ; and that such claim and settlement was a bar to this action. . The court refused the motion, and defendant excepted. • . The defendant; offered his own testimony as to the terms of the compromise, and what maps it was intended to be a payment for, which was excluded by the court. The real question seemed to be whether the former action did not include a claim of $250 for unfinished work, and whether that part of the claim having been rejected in the compromise, plaintiff had gone on to complete the unfinished work, and whether the present action was not for the amount he claimed for it after completion. But parol evidence to show what was included in the compromise being excluded by the court, the jury found a verdict for the plaintiff for the amount claimed. From the judgment entered, the defendant appealed. Robert Sewell, for the appellant. I. Parol evidence is admissible to elucidate a written agreement (Fish v. Hubbard, 21 Wend., 26); or to explain a receipt, and show to what demand it is applicable (Brooks v. White, 2 Metc., 283). The doctrine prevails as to all written acknowledgments and receipts, that the transaction which they are designed . to evince may be proved by the parol testimony of witnesses, without producing the receipts or accounting for the absence of them (Southwick v. Hayden, 7 Cow., 334). Parol evidence is not admitted to explain or contradict the terms of the written contract, but only to ascertain what those written terms are (Speake v. United States, 9 Cranch, 28). II. The court erroneously refused to dismiss the complaint. In case of running accounts for goods sold, or money lent, it has been held that suit on one or more items would bar a subsequent suit, or other items due at the time of the first suit (Guernsey v. Carer, 8 Wend., 472 ; Bendernagle v. Cocks, 19 Id., 207 ; Lane v. Cook, 3 Day, 355 ; Avery v. Fitch, 4 Conn., 362). Where an account is disputed, and the amount agreed upon is paid, it is an accord and satisfaction of the whole demand (Palmerston v. Huxford, 4 Den., 166 ; Price v. Price, 25 Barb., 243). IP. G. Salmon, for the respondent,—Cited Cashman v. Bean, 2 Hilt., 340). [MAJORITY — By the Court. Jones, J.] By the Court. Jones, J. The commencement of an action for the recovery of part of an entire demand does not extinguish the right of action for the balance. If such action proceeds to judgment, then the judgment would be a bar to any action brought to recover the balance of the demand. But the mere pendency of a prior action for part of an entire demand can be pleaded in a subsequent action for the balance of such demand in abatement only (Secor v. Sturgis, 16 N. Y., 548). If such plea in abatement is interposed to the second suit, the plaintiff therein may discontinue the first one, and thereupon the plea falls (Swart v. Borst, 17 How. Pr., 69). In the present case the stipulation entered into in the former action, and its full performance, entitled either party to have a formal order of discontinuance entered. But no order of discontinuance has been entered, therefore that former suit must be regarded as still pending (Averill v. Patterson, 10 N. Y [6 Seld.], 500). If then the pendency of that former suit had been pleaded in abatement to this one, this complaint must have been dismissed on the ground of such pendency, unless the plaintiff had at least before noticing this action for trial, entered an order of discontinuance of the first action. But the defendant did not plead such pendency of the former action in abatement. He pleads it in connection with other matters as a bar. Nowhere in his answer does he admit that it is still pending ; on the contrary, he treats it as at an end and completely disposed of. Formerly, great strictness was required in pleas of abatement, they being dilatory pleas. Even under the Code sufficient strictness should be required to show whether the defendant relies on the matters pleaded as an abatement to the existing action or as a defense in bar to the cause of action. The answer in this action not only does'not show that the pleading of the former suit was relied on in abatement, but shows that he relied on the fact of the commencement of that suit, in connection with other matters, as a bar; and as a plea in abatement this answer is radically defective in omitting the material allegation of its still continued pendency. If he had pleaded such pendency in abatement, the plaintiff would have been put in position to destroy the effect of the plea, by entering a formal order of discontinuance of the first action. As, then, the pendency of the first suit is not a bar, and has not been pleaded in abatement to this action, it forms no obstacle to the plaintiff’s right of recovery. The remaining question is as to the exclusion of the oral evidence offered, to show that this demand in suit was included in the compromise and settlement of the first suit. The terms of that settlement are evidenced by a written agreement, in which there is no ambiguity or uncertainty. Oral evidence is, consequently, inadmissible to alter or vary that agreement. That agreement was entitled in the first action, and commences with the following language : “It is hereby stipulated and agreed, by and between the parties hereto, that the amount of plaintiff's demand in this action be and is hereby fixed at the sum,” etc. It is urged that under this language, oral testimony was admissible, to show what the plaintiff’s demand in the action was. His complaint, which was in writing, and which had been served before the settlement was made, showed what the demand in the action was. The demand claimed in the complaint, and that only, is the “ demand' in this action.” This is the only demand to which the words, “ demand in this action,” can possibly refer'. What that demand was, is shown by the written complaint; and it cannot be altered or varied by parol evidence. Monell and Fithian, JJ., concurred. .Judgment' affirmed, with costs. <s>