In the first suit, the defence was the liability of the defendant upon this special promise to pay the debts of the plaintiff; the plaintiff could not recover the price for goods sold and delivered, because he had received, as the consideration of the purchase, this special promise and undertaking of the defendant to pay the plaintiff’s debts. By so pleading, he affirmed, instead of negativing, the special promise and undertaking. He said, in substance, “ I am not to pay you for these goods in money, because the consideration, or part of the consideration, of the sale was the special promise and undertaking to pay your debts.” The judgment in the first suit was, that the plaintiff could not recover, because of the subsisting obligation of the defendant to pay the debts of the plaintiff.
Now, when an action is brought on the agreement, the defendant cannot turn round, and say, “ You have brought your action for the money, and have failed.” The obvious answer of plaintiff would be, “ I have failed, because you set up in bar the very promise and undertaking on which I now rely.”
It would seem to be plain, therefore, that the judgment in the first suit constitutes no bar to the maintenance of this action. The first suit was not for the same cause of action, nor to be supported by the same evidence, as the second. The judgment in the first did not negative the cause of action relied upon in the second, but affirmed its existence and pointed the way to a better writ. New trial ordered.