'We are of opinion thaffthe evidence, on the trial, established a cause of action in assumpsit in favor of the plaintiff, to which no legal defense was shown.
It appeared from an express admission by counsel on the trial, that the firm of Schmidt & Glade was indebted o tliet latter, at the time of his death, in the sum of one thousand eight hundred eighty-one dollars and ninety-three cents. Then by the deed and the bill of sale, executed by the plaintiff and delivered to and accepted by the defendant, there was reserved the duty, on the part of the defendant, of paying all the liabilities of said firm, and of him, said Schmidt, as surviving partner. The defendant, Schmidt, not having signed or sealed either of said instruments, covenant could not be-maintained against him upon either. But it is well settled,, that where a grantee accepts a deed poll, reserving certain' duties expressly to be performed by such grantee, assumpsit will lie for the non-performance of them. Gale v. Nixon, 6 Gowen, 445; Goodwin v. Gilbert, 9 Mass. 510; Hurst v. Rodney, 1 Wash. 375; Guild v. Leonard, 18 Pick. 511; Nugent v. Riley, 1 Metc. (Mass.) 117; Newell v. Hill, 2 Id. 180.
We are also of opinion that the decree of the circuit court in the chancery shit, between the parties, constituted no bar to a recovery in this action of assumpsit for the non-performance of the duty arising upon the reservation contained in said deed and bill of sale respectively, for the reasons, (1) that such duty was created by an instrument made after the decree; (2) it was purely a legal duty, and not cognizable by a court of equity. In fact, the liability bn the part of the defendant to pay the indebtedness of the firm of Schmidt & Glade, in question, had its origin entirely after the bill in the chancery suit was filed, and arose from new contractual relations between the parties to this suit. It is the rule that a final decree upon a bill in equity is conclusive upon all the parties in respect to all matters of claim and defense determined by it, and as to all incidental matters which the parties were bound to litigate and bring to decision. Neglect to present a claim, which might have been litigated in a bill in equity, until after final decree, will generally be regarded as a waiver of the claim. Ashnelot Railroad Co. v. Cheshire R. R. Co., 59 Rew Hamp., and authorities cited; Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 U. S. 688; Clemens v. Clemens, 37 N. Y. 59. But to come within this rule, the matter claimed to be barred must be such that the party was bound to present it. Malony v.Horan, 49 N. Y. 115; Barwell v. Knight, 51 Barb. 267.
Row, if the decree in the chancery suit was a final decree, the deed poll from plaintiff to defendant and accepted by him, which-contained the reservation upon which the duty on the part of defendant arose, for the non-perfonnance of which this action of assumpsit was brought, was not made until after such final decree, and the duty was a legal one. The plaintiff 'was not, therefore, bound to present the claim in the chancery suit. But the decree was not final as to the matter in question and several other matters. In order to be a bar to anew suit, the decree must not only be substantially between the same parties, and for the same subject-matter, but it must also be in its nature final, or afterward made so by order of the court; for otherwise it will not "be a bar. Therefore, a decree for an account of the principal and interest due on a mortgage, and for a foreclosure in case of non-payment, can not be pleaded to a bill to redeem, unless there is a final order of foreclosure. Story’s Eq. PI. § 791.
The instrument creating the legal duty having been made after the decree, and'not having been brought before the court of chancery, if it had been cognizable there, or in any manner passed upon, it is inconceivable how such decree could be a bar.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.