The question in this case is, whether the defendant has been twice sued "for the same cause.”
Revised Statutes, c. 82, § 124, provides that: "When costs have been allowed against a plaintiff on nonsuit or discontinuance, and a second suit has been brought for the same cause before the costs of the former suit are paid, further proceedings shall be stayed until such costs are paid.”
In this case a motion was seasonably filed to stay the proceedings until the costs allowed in a previous suit between the same parties upon nonsuit, should be paid. The motion was overruled, and the case proceeded to trial, and exceptions being taken to the overruling of that motion, the case is before this court.
The present action is assumpsit upon an account annexed for one thousand dollars for rent of plaintiff’s gas plant in Brunswick, also a count for use and occupation, both counts being founded upon an implied promise to pay a reasonable sum for rent. The former suit was for covenant broken, and the declaration was upon an indenture, or lease, under seal, made between the plaintiff and defendant. The covenants on the part of the defendant wére set out and breaches thereof alleged. The case went to the law court (85 Maine, 582) and a new trial was granted because the lease of the plaintiff of its corporate franchises was ultra vires and void.
It is admitted by counsel that in that suit, among other things, an agreed compensation for use and occupation of the same plant for the same time was claimed.
But the cause of action in that suit, as the record discloses, was for breaches of several covenants contained in the lease.
In the present case, the cause of action is implied assumpsit.
The cause of action was not the same in each. There was a material difference in the form of action, the declaration, the plea, the measure of damages, and the form of judgment.
The forms of action are so dissimilar that they could not be properly joined in the same suit. In an action of covenant, evidence of a parol contract is not admissible. Phillips, etc. Construction Company v. Seymour, 91 U. S. 647, 654. In *556Long v. Woodman, 65 Maine, 56, it was held that this statute did not apply where the declaration in the former action was in tort and disposed of on demurrer, and the latter action was in assumpsit.
While it is true, as stated in Smith v. Allen, 79 Maine, 536, that this statute should be interpreted liberally in behalf of defendants, yet in the present ease we feel that the cause of action is not the same as that in the former suit, and therefore the statute does not apply.
Exceptions overruled.