The opinion of the court was delivered by
Woodward, J.If the two former suits were for the same cause of action as the present, there was no error in admitting the records of those suits, and in holding the plaintiff concluded .thereby.
What was the cause of action in those cases ?
We learn from the charge of the court that the suits were brought to recover the value of staves, made under the same agreements that are in evidence in this case. They were actions of indebitatus assumpsit, and the legal defence taken was that the suits should have been upon the special contract. The court replied that if the contract had been fully executed on the part of the plaintiff, he might sue in the form adopted, for the price of the staves. The plaintiff accordingly recovered for all the *146staves taken from the Lloyd lands, some 84,000, and for about 23,000 taken from the land of John R. Crum. About 1000 staves had been delivered after the institution of the last of the former suits, but it was agreed to include these in the verdict, and they were recovered for like the rest. The verdicts in the two cases amounted together to $1790.51 — a sum which would seem to have been the plaintiff’s full compensation for all the staves actually sold and delivered to the defendants, under the agreement of 8th May 1856. The agreement Ayas apparently extinguished by the verdicts.
Yet the present action is founded on the same agreement. Assuredly the plaintiff does not expect to recover again for the staves delivered under that paper. What other cause of action, then, can he extract from it ? It is a curiously drawn instrument. It begins by Bickford agreeing to relinquish to Cooper & Co. all claims in a contract made with Gr. L. Lloyd for a lot of timber on certain lands; then folloAvs his agreement to transfer also a certain contract between him and John Gr. Pringle, for the manufacture of staves from said timber; then comes the agreement of Cooper & Co., to pay Bickford $2000 for said contracts. The agreement then goes on to relinquish all Bickford’s rights, under agreements Avith other parties, and to stipulate for the points at which the staves are to be delivered, and concludes with the promise of Cooper & Co. to pay Bickford $20 per thousand for the staves, delivered at the designated points.
Now, the contract of Bickford with Lloyd was, that Bickford was to be permitted to take all the timber suitable for staves on two tracts of Lloyd’s land, of 400 acres each, at the rate of $3 the thousand, and Pringle was bound by his contract to manufacture this timber into staves at $6 per thousand. The staves were thus to cost Bickford $9 per thousand. Were the defendants to pay Bickford $2000 for the Lloyd and Pringle contracts, and $20 the thousand for the staves, delivered under them ? Though the tenor of the agreement of 8th May 1856 is so, it is impossible that such could have been its spirit and meaning. It is probable an alternative was intended; either a transfer of the contracts at the pi'ice mentioned, or a sale of the staves at the specified rate. If the $20 a thousand referred to staves made under other contracts, it was applied in the former suits to the staves made under the Lloyd and Pringle contracts, so that Ave shall do the parties no injustice by so construing their agreement as to make that rate of payment for staves manufactured by Pringle, the alternative of an assignment and transfer of the Pringle and Lloyd contracts. Had the defendants succeeded to those contracts, their staves would have cost them but $9 per thousand. But Bickford has compelled them to pay $20. How ? By Avithholding the contracts and furnishing the staves himself. *147He has elected that alternative, and he enforced it fully in the former suits. Can he now recover for those contracts ? To permit him to do so, would be to pay him first for the staves, a full outside price, and then to pay him for the timber and manufacture of the staves. The agreement so construed and administered, would charge the defendants twice with what they got. They would have good reason to complain, in hsec fcederá non venimus. It would indeed be a most extraordinary and unprecedented contract — too monstrous and absurd to impute to business men.
If, then, the plaintiffs cannot recover the $2000 stipulated to-be paid for the Lloyd and Pringle contracts, because he retained those contracts and delivered the staves under them, the only cause of action that would accrue to him from the agreement, on which he has counted, would be the contract price of the staves, and that he recovered in the former suits. The plea of former recovery was therefore an absolute bar to this action, and the court were right in giving effect to it.
The judgment is affirmed.