Sec 936

A plaintiff, by electing to take judgment for part of his claim, may absorb the whole claim in the judgment. " The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward."3 - "There is nothing in this language applied to the facts in the case, however," so it has been declared by high authority in this country, "which gives support to the doctrine that whenever, in one action, a party might have brought forward a particular ground of recovery or defence, and neglected to do so, he is in a subsequent suit between the same parties, upon a different cause of action, precluded from availing himself of such ground."4 But a creditor who arbitrarily splits up any one cause of action into separate suits exhausts his remedy by suing the first suit to judgment.5

Sec 937

No matter how great may be the amount claimed in a suit for unliquidated damages, it may be extinguished by a comparatively small sum paid in cash. The cash element in the payment forms the consideration; money paid in hand having a real value which is a counterpoise for an unliquidated claim for a far larger amount.6

Plaintiff by suing part of claim to judgment may extinguish whole. .

Fractional cash payment may extinguish larger unliquidated claim.

1 Goodwin V. Cremer, 18 Q. B. 757; Stevens V. Briggs, 14 Vt. 44; Emerson V. White, 10 Gray, 351; and cases cited infra, sec 970 et seq.

2 Beaumont V. Greathead, 3 D. & L. P. C. 631.

3 Henderson V. Henderson, 3 Hare, 115; Wigram, V.-C.; see Chamley V. Lord Dunsany, 2 Sch. & L. 718; and see infra, sec 1007.

4 Field, J., Cromwell V. Sac, 94 U. S. 351; see Aurora City V. West, 7 Wall. 82; Howard V. Kimball, 65 Me. 308.

5 Wh. on EV. sec 788; Baker V. Stinchfield, 57 Me. 363; Warren V. Comings, 6 Cush. 103; Smith V. Jones,.

15 Johns. R. 229; Willard V. Sperry,.

16 Johns. R. 121; Miller V. Covert, 1 Wend. 487; Ingraham V. Hall, 11 S. & R. 78; Nave V. Wilson, 33 Ind. 294; Buford V. Kersey, 48 Miss. 643; Wick-ersham V. Whedon, 33 Mo. 561; and see infra, sec 1007.

6 Wilkinson V. Byers, 1 A. & E. 106. For other cases see supra, sec 521 a, 533, 858; infra, sec 1000.