It may happen that the injury complained of is the breach of a contract that extends over a considerable space of time, and includes many acts; or it is a tort divisible into many parts. The question then arises, whether the action should be for the whole breach or the whole tort, and damages be given accordingly. This must depend upon the entirety of the contract or of the tort If it be a whole, formed of parts, which are so far inseparable that if any are taken away there is no completed breach or tort left, all must be included in the demand and in the damages. (g) But if they are separable into many distinct * breaches or torts, then an action may be brought as if each stood alone, and damages recovered. (h) There would seem, however, to be the consequences of non-performance, the neglect to perform the act, being a breach of contract, will give an immediate right of action.'

(g) Hambleton v. Veere, 2 Saand. 169, note; Masterton v. The Mayor of Brooklyn, 7 Hill, 61. In Shaffer v. Lee, 8 Barb. 412, after an elaborate review of the cases, it was held, that a bond conditioned to furnish to the obligee and his wife all necessary meat, drink, lodging, washing, clothes, etc, during both and each of their natural lives, was an entire contract, and that a failure by the obligor to provide for the obligee and his wife, according to the substance and spirit of the covenant, amounted to a total breach; and that full and final damages should be recovered, for the future as well as the past. In Royalton v. The R. & W. Turnpike Co.'14 Vt. 311, the defendants agreed to keep a bridge in repair for twenty years, on the plaintiff's paying him twenty-five dollars a year. The money was paid and the bridge kept in repair, according to the agreement, for eight years, when the defendants ceased to repair, and the action was then brought. Redfield, J., said, that the jury should "assess the entire damages for the remaining twelve years." See our remarks on entirety of contracts, with the notes, vol. ii. pp. *517-*520.

(h) Grain v. Beach, 2 Barb. 120; Bris-towe v. Fairclough, 1 Man. & G. 143;

Clark v. Jones, 1 Denio, 516; Puckett v Smith, 5 Strobh. 26 , supra, note, (g), and cases cited. In Grain v. Beach, 2 Barb. 120, the defendants had covenanted to keep a certain gate in repair, and to use common care in shutting it, and in passing and repassing the same; it was held, that if the gate should be suffered to be out of repair, or should be allowed to remain open by the defendants, the damages in an action for the breach of their covenant would be determined by the amount of the plaintiff's loss, by means of the breach proved on the trial of the cause, and that the recovery thereof would be no bar to a future action for a renewed breach of the covenant. 8. c. in Error, 2 Comst. 86. Wright, J., said: "To constitute an effectual bar, the cause of action in the former suit should be identical with that of the present. It is the same cause of action where the same evidence will support both the actions, although they happen to be grounded on different writs. Rice v. King, 7 Johns. 20. But the evidence in both actions may be in part the same, yet the subject-matter essentially different; and in such case there is no bar. For example, if money be awarded to be paid at different times, assumpsit will lie on the award for each sum as it becomes due. So, on an agreement to pay a sum of money by instalments, an action will lie to recover each instalment as it becomes due this qualification to this rule. If there are many parts of the contract, and some have been broken, and others not yet; as if money was to be paid on the first of every month for two years, and one year has expired and nothing has been paid, the creditor may bring his action for one or more of all the sums due, and, recovering accordingly, may, when the others fall due and are unpaid, sue for them, (i) But if at any time he sues for a part only of the sums due, a judgment will be held to be satisfaction of all the sums which could have been included in that action, and were due and payable by the terms of that contract; and therefore no further suit can be maintained on any of them. (J) The reason for this rule is the prevention *of unnecessary and oppressive litigation. And it would doubtless be regarded in actions founded on tort, whenever it was distinctly applicable to them.

The contract may be for a considerable time; and if a breach occurs before the whole time expires, and an action is at once brought, the question arises whether the whole period may be considered by the jury in assessing damages. The principle which must decide this question, we apprehend to be this: if the breach be final and conclusive, then, and then only, can the jury estimate, from such evidence as they have, what is the present damage to the plaintiff, by the violation of the whole contract (k)1 For example, a corporation hires an overseer at so much wages and such a share of the profits for three years. At the end of one, he is dismissed without good cause. We should call this a final breach; and should say, the jury should determine what he loses by the wages and profits for the residue of the three years, deducting what his time and labor may be worth for that time; the facility or difficulty of finding employment, and all other circumstances bearing upon the estimate, being considered.2

In covenant for non-payment of rent, or of an annuity payable at different times, the plaintiff may bring a new action tottes quotte*, as often as the respective sums become due and payable; yet in each of these examples, the evidence to support the different actions is in part the same. In this case, the same covenant was the foundation of both actions; the same evidence, therefore, in part, is alike common to both; but there is this difference: in the former snit the breach was assigned, and the actual damages laid as having accrued prior to the commencement thereof; in the present, damages are sought to be recovered for a breach subsequent to such former action. In the present action the plaintiff could not have recovered for damages that had accrued prior to the first suit, for he is not permitted to split up an entire demand, and bring several suits thereon; but he may show a breach subsequent to the former suit, and recover the actual damages arising from such subsequent breach." See also Phelps v. New Haven, etc. Co. 43 Conn. 453; Erie, etc K. R. Co. v. Johnson, 101 Pa. 565.

(i) Cooke v. Whorwood, 2 Saund. 337. In Ashford v. Hand, Andrews, 370, an action on the case was brought by an indorsee, upon a note of hand for paying £5 5s. by instalments; and the last day of payment being not yet come, he counted only for such part as was due. " It was resolved, that though in the case of an entire contract an action cannot be brought until all the days are past, yet where the action sounds in damages (which is the present case), the plaintiff may sue, in order to recover damages for every default made in payment."

(j) Bendernagle v. Cocks, 19 Wend. 207; Colvin v. Corwin, 15 Wend. 557; Pinney v. Barnes, 17 Conn. 420; Eddy v. Davis, 114 N. Y. 247; Burritt v. Belfy, 47 Conn. 323. In case of a running account, for goods sold or money lent, it has been held, that a suit upon one or more items, would bar a subsequent suit on other items due at the time of the first suit. Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, supra Lane v. Cook, 3 Day, 255; Avery v. Pitch, 4 Conn. 362. The opposite doctrine was held in Badger v. Titcomb, 15 Pick. 409. If any of the items were not due at the time of the action, a suit for them would not be thereby barred. McLaughlin v. Hill, 6 Vt. 20.