(dissenting). — I can not concur in the foregoing opinion, either as to its statement of facts or conclusions of law. As I read the record, this was simply the matter of an ordinary running account — the sale of goods by a wholesale merchant to a country store — wherein various items were furnished during the months of June, July, August and September, with partial payments, leaving a balance of $303.80 due on December 10, 1890. On that day the plaintiff’s agent brought two suits before a justice one for $230.76 and the other for $73.04. He testifies that he split up the account so that he could sue before a justice of the peace. Plaintiff was defeated in the first suit for $230.76, and I think a judgment therein ought to be a bar to the second. Robbins v. Conley, 47 Mo. App. 502; Steigleider v. Railroad, 38 Mo. App. 511; Mackey v. Hyatt, 42 Mo. App. 443; Skeen v. S. Engine & Thresher Co., 42 Mo. App. 158.
The account as it stood,, on December 10, 1890, when said suits were brought, was one demand and only one cause of action. It was for a balance due on a running account. “Where it is specifically agreed, or impliedly understood, between the parties that the account is to be kept open and continued as one and the same continuous transaction and course of dealing, the account is considered in this state as one continuous account and one demand.” Ring v. Jamison, 2 Mo. App. 584; Boylan v. St. Bt. Victory, 40 Mo. 244; Madison Coal Co. v. Colona, 36 Mo. 446.
Coming down now to the sale of goods on September 12, 1890 (which was the last bill sold) 1 must differ with my associates in the statement made that it was conclusively shown that there were two separate and distinct sales made on that day. As I understand it, the evidence quite clearly shows the contrary, and that there was *397one, and only one, transaction. Bick, plaintiff’s traveling salesman, who sold the goods to defendant, testified that on that day he went to defendant’s store and took an order which he sent into the house at St. Louis; and the bills as sent out refer to one, and only one, order (to wit: No. 16074). It would appear, however, that, of the goods that day ordered by defendant, some were sold on thirty days and others on sixty days time. However, all these goods were bought at one and the' same time by one and the same order. It was simply one transaction wherein certain goods were sold to be paid for in installments — part in thirty days and part in sixty days. But when the two suits Were brought both installments were past due. And this being the case we have a state of facts fitting the law announced by our supreme court in Union R. R. Co. v. Traube, 59 Mo. 355, to wit: ‘‘Where several claims payable at different times arise out of the same contract or transaction, separate actions may be brought as each liability accrues; but in this case it has been held that if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due a recovery in that suit will be a bar to a second action brought to recover the other claims that were due when the first one was brought.”
Now, the account sued on in this action is for a portion of the goods included within the one order of September 12, 1890, — the remaining portion of that order was made the basis of another action. When the entire amount of that one purchase had become due, plaintiff, under the rule above announced, should have brought one action for the entire debt; it had no right to vex the defendant twice for the same cause of action.