I dissent from the decision about to be made. I concede to the fullest extent the principle that the plaintiff cannot split up a single cause of action, and that if he does a recovery on any part of the cause of action bars a suit for the remainder. I also concede the principle that in an executory contract for the sale of a number of articles or of a quantity of material, to be delivered in installments and payment made therefor as delivered, in the case of a breach by either party as to one of the installments the other party may elect to treat the default as a complete breach of the contract, and maintain a suit for all his damages. I further concede that where there have been several breaches of a single contract the plaintiff must include in his action all breaches which have occurred prior to the commencement of the action. But I insist that none of these principles controls the question before us, which is not whether the plaintiff upon the default in the delivery of the first installment of pedals could rescind the contract as having been abrogated by the act of the defendant, reserving his right to recover damages, but whether he was obligedto adopt *Page 219 that course. Had he not as the aggrieved party the option to treat the contract as still continuing in force and, therefore, assert his right to recover damages for each default as it might occur? There can be no question that there may be a continuous agreement or covenant for every breach of which a new cause of action arises. Such is a covenant to maintain and repair a gate across a right of way. (Beach v. Crain, 2 N.Y. 86.) There it was held that a recovery for one breach did not bar an action on a subsequent breach, and it was said that the defendants could not relieve themselves from subsequent obligations by payment of a gross sum as damages. There are many cases of a similar character. Where the obligation is for the payment of money in installments the obligee has not, on default in the payment of one installment, even a right to elect to treat the contract as entirely broken, but must sue for the installments as they become due, unless the contract gives him the right of election. Where such an election is given by the contract, as is now quite common in the case of bonds and mortgages, the obligee is not bound to exercise it, but may do as he pleases. Therefore, to hold that the aggrieved party to a contract of the character of the one before us is not bound to accept a single breach of the contract as a total repudiation of its obligations, but can sue for each breach as it occurs, creates no anomaly in the law, and I can find no case where it has directly been held that he cannot. As I read them, in none of the cases cited by my brother O'BRIEN, except those relating to contracts of employment, was the question before us involved. They all present the question as to the right of an aggrieved party on a single breach to recover as for a total abrogation of the contract, not the question whether he is obliged so to do. In fact, in most of the cases it is said that the aggrieved party may elect to treat the contract as abrogated. An election necessarily imports a right of choice. The question not being settled by authority should be determined on principle. Why should it be within the power of a party to a contract which may last over a long *Page 220 term of years, and the items or obligations of which are easily severable, to transmute by his own wrong his contract obligations into an unliquidated claim of damages against him, damages which as far as the future obligations of his contract are concerned are necessarily speculative. A person being about to contract for the construction of some work the execution of which will require a long period of time needs, to carry out the contract, brick, stone or steel, and to secure himself against subsequent fluctuations in the market price of these articles, which he may believe will be greatly enhanced in price in the future, contracts with a materialman for their delivery in installments. It is by no means improbable that he has paid more than the present market price solely by reason of the uncertainty of the market price in the future. Under the decision about to be made he must either sue at the time of the first breach, when his damages will necessarily be speculative, a speculation it was the very object of the contract to avoid, or perhaps wait till the time for the last delivery has passed, when it may be that under the doctrine now declared his cause of action would be barred by the Statute of Limitations. As was said by Judge ANDREWS inPerry v. Dickerson (85 N.Y. 345): "The law, to prevent vexations or oppressive litigation, forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions for each. * * * There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be, and but one action for a single breach of a contract * * * But it is not a test of the right of a plaintiff to maintain separate actions that all the claims might have been prosecuted in a single action. A plaintiff having separate demands against a defendant on a contract, or arising from distinct trespasses or wrongs, is not required to combine them in one action, although in most cases he may do so at his election." So it was held that a demand for unpaid wages and for wrongful dismissal, though both breaches of the same contract, did not constitute a single cause of action and that a judgment for damages for wrongful *Page 221 dismissal did not bar a claim for unpaid wages. Nor is our decision in Nichols v. Scranton Steel Company (137 N.Y. 471) controlling. It was there said: "If it were not for a repudiation of the contract nothing could be recovered as damages for the iron not delivered, because by the terms of the contract such delivery and payment would not be due, but when the defendant does repudiate the contract and refuses on its part to fulfill its terms, it cannot be heard to say that the other party must himself be bound by it, and must await the expiration of the term of credit provided for by it before any action can be maintained under it." This is doubtless true. It does not lie in the month of the defaulting party to say that the contract is still in force; but how about the aggrieved party? May he not say the contract is still in force? Of course, where a party sues for damages for only a single breach of a contract, he elects to continue it in force. Therefore, he must live up to the future obligations of the contract and cannot justify a subsequent breach on his part by the previous breach on the part of the other party. But whether the contract shall be continued in force or shall be rescinded seems to me should be entirely within the election of the aggrieved party.
So in Parker v. Russell (133 Mass. 74), where the defendant had agreed to support the plaintiff during his natural life and refused to do so, it is said: "But if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he elects toso treat it, the damages are assessed as of a total breach of an entire contract." This statement is quoted with approval by the United States Supreme Court in Pierce v. Tennessee Coal, etc.,R.R. Co. (173 U.S. 1.) Thus the right of election in the aggrieved party is recognized.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
GRAY, EDWARD T. BARTLETT, WERNER, HISCOCK and CHASE, JJ., concur with O'BRIEN, J.; CULLEN, Ch. J., reads dissenting opinion.
Judgment affirmed. *Page 222