In a number of jurisdictions, the condition of affairs at the time that the action is begun, and not the condition of affairs at the time that the judgment is rendered, is to be considered in determining whether the judgment operates as a merger or not.1 Accordingly, if an action is brought to recover damages for certain breaches of a contract, and subsequent breaches occur after such action has begun, but before a judgment is rendered therein, such judgment is said not to merge the causes of action for such subsequent breaches.2 The fact that the plaintiff might have amended his petition in the original action so as to include the subsequent breaches, has been said not to alter the rule; and not to make a judgment rendered on the original cause of action operate as a merger of rights of action arising on subsequent breaches, in case the plaintiff does not exercise his right so to amend.3

15Matheny v. Preston Hotel Co., 140 Tenn. 41, 203 R. W. 327.

16Matheny v. Preston Hotel Co., 140 Tenn. 41, 203 S. W. 327.

17Matheny v. Preston Hotel Co., 140 Tenn. 41, 203 8. W. 327.

18 Kane v. Morehouse. 46 Conn. 300; Jones v. Beaman, 110 N. Car. 300, 25 S. E. 970.

19Seddon v. Tutop, 1 Esp. 401; Post v. Smiliee, 48 Vt. 185.

20 Johnson v. Provincial Ins. Co., 12 Mich. 216, 86 Am. Dec. 49.

21 Economic Life Assurance Society v. Usborne [19021, A. C. 147.

22 Economic Life Assurance Society v. Usborne [19021, A. C. 147.

23 Economic Life Assurance Society v. Usborne [ 19021. A. C. 147.

1Illinois. Marshall v. John Grosse Clothing Co., 184 111. 421, 75 Am. St Rep. 181, 56 N. E. 807.

If the contract is a continuing one, judgment does not merge a right of action for breach which did not arise until after judgment.4