¶1— The distinction in Hess v. Heeble, is between those cases in which the cause of action appears to have been entire, and those in which it appears to have consisted of parts divisible without inconvenience or confusion. In the latter, it was said, the record, if it do not affirmatively show that the jury passed on the controverted matter, does not conclude the plaintiff in a subsequent action. Apply that distinction to the present case. The defendant below had covenanted to pay $1000 by instalments, thus: an amount sufficient to discharge a judgment which bound the land, and $75 yearly, till all should be paid. The plaintiff assigned for breach generally, in the words of the covenant, that he had not discharged the judgment, and had not paid the annual instalments till all were paid. By recurring to the time when suit was brought, we find that three of these instalments had not fallen due, and of course could not have been recovered under this or any other assignment; and it was to show this that the evidence was offered, so that upon the distinction stated it is difficult to see how the rejection of it can be sustained. Breaches for the three instalments included in the present action, were not specifically assigned; nor does it affirmatively appear that damages were assessed for them; consequently, the evidence did not tend to contradict the record, but would have served to explain it in those particulars in which the generality of the assignment had left it doubtful. The action, unlike that in Hess v. Heeble, was not for a sum in sólido, but for distinct breaches of a covenant, each of which might be an independent cause of action; and that these had occurred at the commencement of the action did not appear by the pleadings, for the assignment would have been sustained by proof of non-payment of the judgment, or any one of the instalments. It was competent, then, for the plaintiff to prove that they had not been recovered.
¶2Judgment reversed, and a venire de novo awarded.