ulation as it is broken, before the time for the performance of the others, yet the ground of action is the stipulation, which is in the nature of a several contract." As a general rule, distinct contracts of sale constitute distinct causes of action. But several sales made at different times may, by agreement of parties, or by inference from circumstances, be so blended or connected as to constitute but one entire demand or cause of action; thus, it is held that all the items due on a running account for merchandise sold constitute but a single cause of action, and that a recovery in one action for a part of the items is a bar to a subsequent action for the residue. So, it is held that several claims for monthly rent, all due, cannot be split up into separate actions, and if separate actions are brought, judgment in one is a defense to the others.10 So the contract of an attorney with his client is entire, and he must include all his services in one action.11 But a claim of damages for an alleged wrongful dismissal from employment, and a claim to wages earned during the time the plaintiff was actually employed, and due and payable before the wrongful dismissal, constitute separate causes of action upon which separate actions may be maintained.12 Different acts of fraud in obtaining payment of many different fraudulent claims at different times, in pursuance of an alleged conspiracy, may be treated as a single cause of action.13 Loss to the plaintiff of his wife's services, and the expenditure by him of means and labor in healing and caring for himself and child, such damage being the result of the same negligent act of the defendant, constitute but a single cause of action,14 entire conversation, in which slanderous words are published, constitutes but a single cause of action.15 The rule which forbids the splitting of an entire demand,

BOONE PLEAD. - 6.

The

is designed to prevent vexatious or oppressive litigation; 16 and when the parties mutually agree to a division of one single demand into several, the reason of the rule no longer exists, and a judgment upon a part of the demand is no bar to an action upon the remainder. The holder of several past due promissory notes against the same parties may bring separate actions upon each, and a recovery in one, and satisfaction of the judgment, is not a bar to the other actions.19 And the fact that the notes were given upon settlement of one and the same demand does not make each a part of the original demand, so as to compel the bringing of a single action upon all of the notes.19 A party cannot be compelled to join in one action several distinct causes of action.20

1 See Staples v. Goodrich, 21 Barb. 317; Draper ". Stouvenel, 38 N. Y. 219; O'Beirne v. Lloyd, 43 N. Y. 248; Bowman v. Holladay, 3 Oreg. 182.

2 Secor v. Sturgis, 16 N. Y. 548; 2 Abb. Pr. 69; Mulford v. Hodges, 10 Hun, 79; Welch. Platt, 32 Hun, 194; 5 Civ. Proc. R. 433; 19 N. Y. Week. Dig. 265. And see Van De Haar . Van Domseler, 56 Iowa, 671, 676.

3 Sheldon v. Lake, 40 How. Pr. 489; 9 Abb. Pr. N. S. 306; Railroad Co. v. Chester, 57 Ind. 297; Filer v. Railroad Co. 49 N. Y. 42; Rochring v. Huebschmann, 34 Wis. 185.

4 Perry v. Dickerson, 85 N. Y. 345; Farrington v. Payne, 15 Johns. 432; Commissioners etc. v. Plumb, 20 Kan. 147. If there is but one right to be enforced, or one wrong to be redressed, there can be but one cause of action, however many steps are necessary to enforce such right or to redress such wrong: Meyer v. Van Collem, 7 Abb. Pr. 222; 28 Barb. 230.

5 Secor v. Sturgis, 16 N. Y. 548; 2 Abb. Pr. 69; Whitaker v. Hawley, 30 Kan. 317, 328. And see Bond v. Sewing Machine Co. 23 Kan. 119; Stein v. Steamboat etc. 20 Kan. 147.

6 Secor v. Sturgis, 16 N. Y. 548; 2 Abb. Pr 69. And see O'Beirne, v. Lloyd, 43 N. Y. 248; McIntosh v. Lown, 49 Barb. 550; Beach v. Crain, 2 Barb. 120; 2 N. Y. 86.

7 Badger v. Titcomb, 15 Pick. 409; Am. Button Hole etc. Co. v. Thornton, 28 Minn. 418.

8 See Am. Button Hole etc. Co. v. Thornton, 28 Minn. 418.

9 Stevens v. Lockwood, 13 Wend. 646; Guernsey v. Carver, 8 Wend. 492; Memmer v. Carey, 30 Minn. 458. And see Kansas City Hotel v. Sigement, 53 Mo. 176; Ref. Dutch Church v. Brown, 54 Barb. 191; Nathans v. Hope, 77 N. Y. 420.

10 Smith v. Dittenhoefer, 1 City Ct. Rep. (N. Y.) 143.

11 Gustine v. Stoddard, 23 Hun, 99; Beekman v. Platter, 15 Barb. 550; Bathgate v. Haskin, 59 N. Y. 533.

12 Perry v. Dickerson, 85 N. Y. 345. Holladay, 3 Oreg. 182.

But compare Bowman v.

13 People v. Tweed, 5 Hun, 353; 63 N. Y. 194; 50 How. Pr. 38. And see Price v. Price, 2 Hun, 611; Bebinger v. Sweet, 6 Hun, 478; 1 Abb. N. C. 263.

14 Railroad Co. v. Chester, 57 Ind. 297. Compare Dickens v. N. Y. Cent. R. R. Co. 13 How. Pr. 228.

15 Cracraft v. Cochran, 16 Iowa, 301.

16 Perry v. Dickerson, 85 N. Y. 345; Draper v. Stouvenel, 38 N. Y. 219.

17 Cornell v. Cook, 7 Cowen, 310; O'Beirne v. Lloyd, 43 N. Y. 248; Millard v. Mo. etc. R. R. Co. 20 Hun, 191.

18 Nathans v. Hope, 77 N. Y. 420. Iowa, 57.

Compare Merritt v. Nihort, 11

19 Nathans v. Hope, 77 N. Y. 420. See Dawson v. Lail, 1 Ariz. 490. 20 Staples v. Goodrich, 21 Barb. 317; Secor v. Sturgis, 16 N. Y. 548.

39. Choice of remedy. It often occurs that a plaintiff is entitled to elect a remedy, or make a choice between different causes of action.1 And a judicious election frequently becomes a matter of importance, since it may determine the right to recover; 2 as where a cause of action exists against one who may effectually plead the defense of infancy if sued on contract, whereas, if sued in tort, the plea of infancy would be of no avail. On the other hand, it is often advisable for the plaintiff to waive the tort, and sue the defendant upon contract. Generally speaking, if goods are wrongfully taken or detained, the plaintiff may waive the tort, and bring an action upon an implied promise to pay for them. So if one wrongfully obtains money from another, he creates a debt in respect to which the law implies a promise to pay, upon which an action may be maintained as for money had and received. The nature of the action, whether upon contract or in tort, is to be determined by the facts alleged as constituting the cause of action. But the mere fact that there are allegations of fraudulent representations in a pleading does not necessarily fix the character of the action as

one ex delicto.8 And where the allegations of the complaint make a good cause of action on contract, the action is to be regarded as one ex contractu, notwithstanding the allegations of false representations which are insufficient to sustain an action of tort.9 A party having made his election will not be allowed, although mistaken in his remedy, to change it, and especially when the rights of third parties have intervened.10 A plaintiff cannot abandon his original cause of action and substitute an entirely new cause of action in his complaint or petition." But where, in the case of an action arising on contract, a party elects to sue in tort, he is not thereby barred from suing upon the contract after the dismissal of the first action.12 And if a party is entitled to two concurrent and distinct remedies, his failure to obtain relief under one of them does not bar him from afterwards resorting to the other.13

1 See Doedt v. Wiswall, 15 How. Pr. 128; Campbell . Perkins, 8 N. Y. 430; Nichols v. Pinner, 18 N. Y. 295; Fisher v. Hepburn, 48 N. Y. 41.

2 Van Leuven v. Lyke, 1 N. Y. 515; Kinney v. Kiernan, 2 Lans. 492.

3 Fish v. Ferris, 5 Duer, 43; Lucas v. Trumbull, 15 Gray, 306; Vasse v. Smith, 6 Cranch, 230; Eckstein v. Frank, 1 Daly, 334. Compare Studwell v. Shafter, 54 N. Y. 249.

4 See McKnight v. Dunlap, 4 Barb. 36; Hawk . Thorn, 54 Barb. 164; McGoldrick v. Willits, 52 N. Y. 612; Hambly v. Trott, Cowp. 375; Harway v. Mayor etc. 1 Hun, 628.

5 Carey v. Green, 3 How. Pr. 376; Putnam v. Wise, 2 Hill, 140; Chambers v. Lewis, 10 Abb. Pr. 206; 11 Abb. Pr. 210; Gordon v. Bruner, 49 Mo. 570; Abbott v. Blossom, 66 Barb. 353; Kalckhoff v. Zoehrlaut, 40 Wis. 427. But it is held that a plaintiff can waive the tort and sue on the contract only where the wrong-doer has sold or otherwise disposed of the property: Cushman v. Jewell, 7 Hun, 525; Tryon v. Baker, 7 Lans. 511; Chamblee v. McKenzie, 31 Ark. 155; Howell v. Graves, 27 Ark. 365.

6 Byxbie v. Wood, 24 N. Y. 607; Tryon v. Baker, 7 Lans. 511.

7 People v Haberstro, 16 Alb. L. J. 151; Cornes v. Harris, 1 N. Y. 223. And see Stevens v. Mayor etc. 84 N. Y. 296; Booth v. Farmers' etc. Nat. Bank, 65 Barb. 457.

8 Sparmann v. Keim, 83 N. Y. 245; 9 Abb. N. C. 1. And see Veeder. Cooley, 2 Hun, 74; Falkland . St. Nicholas Nat. Bank, 9 N. Y. Week. Dig. 2; Ledwick v. McKim, 53 N. Y. 307; Neftel v. Lightstone, 77 N. Y. 96.

9 Sparmann v. Keim, 83 N. Y. 245; 9 Abb. N. C. 1.

10 Adams v. Sage, 28 N. Y. 103; Wright . Pierce, 4 Hun, 351; Rodermand v. Clark, 46 N. Y. 354; Benedict v. Nat. Bank, 4 Daly, 171; Hughes v. Vermont Copper Co. 7 Hun, 677; 72 N. Y. 207.

11 Lackner v. Turnbull, 7 Wis. 95; Stevens v. Brooks, 23 Wis. 199; Board of Supervisors v. Decker, 34 Wis. 380; Sheldon v. Adams, 27 How. Pr. 182; Woodruff v. Dickie, 5 Robt. 620; Rutledge v. Van Metre, 8 Bush, 356; Carpenter v. Huffsteller, 87 N. C. 273; Ramirez v. Murray, 5 Cal. 222; Givens v. Wheeler, 6 Colo. 149; Humphrey v. Hughes, 79 Ky. 487; Tyrrill v. Lamb, 96 Pa. St. 464.

12 Arnold . Clark, 10 N. Y. Week. Dig. 183; 10 Reporter, 152. 13 Hurlbut v. Durant, 12 N. Y. Week. Dig. 477. And see Manning Co. v. Keenan, 73 N. Y. 45; Wheeler v. Ruckman, 51 N. Y. 399.

2 40. Supplemental, nature of.—A supplemental complaint or petition is allowed, where facts have occurred subsequent to the original complaint or petition, which vary the relief to which the plaintiff was entitled at the commencement of the action. Its office is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original pleading, but to bring into the record new facts, so that the court may render its final judgment upon the facts existing at the time of its rendition.2 These facts must relate to the cause of action upon which the suit has been brought, and be pertinent to the rights and liabilities of the parties connected with the cause of action. And a new and substantive cause of action cannot be set up by way of supplemental complaint as a ground of recovery, more especially a cause of action to which the plaintiff was not entitled when he commenced the action. If, on the facts stated in the complaint or petition, no cause of action exists against the defendant, and no relief can be granted against him on those facts, the action cannot be sustained by filing a supplemental pleading founded upon matters which have subsequently taken place. The rule in brief is, that a supplemental complaint must be consistent with and in aid of the case made by the original complaint. It is, in general, the only proper method of