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flict with some, at least, of the cases
III. First action defeated because of ex-
substituted obligation. Lemon v. Sig-
Thus, a judgment for defendant in an action for services, in which plaintiff is required to elect whether he will rely upon a quantum meruit or on an express contract, and elects to rely on a quantum meruit, does not bar a subsequent recovery on an express contract, where the court in the first action directs the jury to find for defendant if the services were rendered under an express contract, as alleged by defendant, or if plaintiff's assignor has been paid their reasonable value. LEONARD V. SCHALL. The court said that if the cause of action was the same, the doctrine of estoppel by judgment applied, and plaintiff was barred from maintaining the suit; that, if the cause of action was not the same, the doctrine of estoppel by verdict applied, and plaintiff was bound by the former judgment only as to those matters actually litigated and determined in the former suit; that defendant was estopped by his motion to require plaintiff to elect, from asserting that the cause of action was the same; and that as the jury might have found for defendant in the first suit on either of two grounds, and it did not appear that the issues in the second suit were necessarily determined by the former judgment, the judgment did not have the effect of an estoppel by verdict.
And a judgment for defendant in an action for the price of goods sold to him by plaintiff, rendered on the ground that defendant had promised to pay plaintiff's debts, and that plaintiff had received such special promise
as the consideration for the goods, does not bar a new action on the special promise to pay such debts. "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." Harding v. Hale (1854) 2 Gray (Mass.) 399.
And a judgment against a depositor in an action to recover a deposit, defended on the ground that a certificate of deposit was issued which had been paid by turning over to plaintiff notes and mortgages in which the deposit was invested, is not res judicata in a new action for the amount collected by the bank on such notes, where the issue submitted in the first action was whether plaintiff accepted such notes in lieu of the certificate of deposit. Lemon v. Sigourney Sav. Bank (1906) 131 Iowa, 79, 108 N. W. 104.
If defendant, in a suit on a promissory note, successfully defends the action on the theory that he has given plaintiff another note in full payment and satisfaction of the one in suit, he cannot, when sued on the second note, rely on the doctrine of res judicata. And if, in an action for the purchase price of a horse, defendant admits the purchase, but alleges that he turned over to plaintiff the promissory note of a third person in full payment of the debt, and upon this issue defendant recovers judgment, there is nothing in the doctrine of res judicata which precludes plaintiff from thereafter suing and recovering judgment against defendant for a conversion of such note, or of the proceeds of its collection. (Stated incidentally by way of illustration in the case last cited.)
In Sullivan v. Ross (1897) 113 Mich. 311, 76 N. W. 309, plaintiff purchased standing timber from defendant, and subsequently presented a claim against defendant's estate for the value of the lumber from such standing timber, claiming an oral sale thereof to defendant; a judgment in his favor was reversed on the ground that the evidence showed a written contract, un
der which the lumber was to be sold for the benefit of both parties, and the profits divided; thereafter he presented a new claim for an amount claimed to be due him under the written contract. The court first held that he had made a conclusive election of remedies, barring him from prosecuting such claim; but on rehearing reversed this holding, and held that he was not barred by the former judgment, saying: "It is very clear that a dispute exists between the parties as to how much is due, and from whom, if the written contract is to control. It is equally clear that that question has never been passed upon by the court. . . The plaintiff sought to recover upon an oral contract. He had no right of action upon that contract, because the court has said that no such contract existed. Can it be said that defendant shall not be required to account for the proceeds of seven or eight millions of feet of lumber, which it admits it had, because plaintiff claimed that the transaction was evidenced by an oral contract, when the court finds that no such contract existed, but that a written one did."
the commencement of the first action. Sweeney v. Frank Waterhouse & Co. (1906) 43 Wash. 613, 86 Pac. 946. The court said: "But no court, we think, has gone so far as to allow a litigant to experiment with a court by trying his case piecemeal. The cause of action which the appellants now urge was available to them at the former trial, the assignments set forth in the complaint having been obtained prior to the commencement of the first action. They should not be allowed to split their causes of action, try their case out on a part of the causes, and, if they fail, commence another action setting forth the other causes."
But a judgment for defendant in an action for personal injuries, in which he pleaded, among other defenses, a compromise agreement between himself and plaintiff, bars an action against defendant on such compromise agreement, where no special issues were submitted, and it cannot be determined that the jury did not reach the conclusion that there had been no valid compromise agreement. This being within the scope of the verdict, the presumption, in a collateral proceeding, ought to be in favor of any and every finding with which the verdict may be consistent. Webb v. Houston & T. C. R. Co. (1908) 51 Tex. Civ. App. 230, 111 S. W. 171.
And a judgment dismissing an action for nondelivery of freight, because it appeared that plaintiffs had assigned the cargo, was conclusive against their right to maintain a new action on an allegation that there had been a reassignment to them, such reassignment having been made before
IV. Action to enforce lien after judgment denying recovery on indebtedness.
A judgment for defendant on the ground that no indebtedness exists, or that it has been discharged, will bar an action to enforce a lien securing the indebtedness (Donovan v. Block (1908) 17 N. D. 406, 117 N. W. 527; Whelan v. Hill (1836) 2 Whart. (Pa.) 118; 23 Cyc. 1194); but not necessarily, if rendered on the ground that the remedy for the enforcement of the personal liability has been lost, or on some ground not going to the merits of the indebtedness (Palmer v. Sanger (1892) 143 Ill. 34, 32 N. E. 390; Stringer v. Gamble (1909) 155 Mich. 295, 30 L.R.A. (N.S.) 815, 118 N. W. 979; Piper v. Hayward (1911) 71 Misc. 41, 127 N. Y. Supp. 240; Douglass v. Blount (1901) Tex. Civ. App. -, 62 S. W. 429, reversed on another ground in (1902) 95 Tex. 369, 58 L.R.A. 699, 67 S. W. 484, cited and discussed above).
Thus, in Donovan v. Block (N. D.) supra, it was held that plaintiff could not recover the possession of chattels covered by a chattel mortgage, for the purpose of foreclosing the mortgage, where, in another action between the parties, it had been adjudicated that he was not entitled to recover the items of the indebtedness secured by the mortgage. And in Whelan v. Hill (Pa.) supra, it was held that a scire facias under a Mechanic's Lien Law, on a claim filed by a materialman, was barred by a judgment against plaintiff in a personal action against the
same defendant, adjudging that defendant's personal liability had been discharged if it ever existed, the court saying that, if the debt was discharged, the lien which secured it was also discharged.
V. Substituted obligation as evidence in first action.
Where a bill of exchange was accepted in payment and discharge of the original indebtedness from the drawer to the drawee, it became a new, independent, and substantive cause of action, and there could be no recovery thereon in an action on the original indebtedness; and hence a judgment for defendant in such action did not bar a recovery in an action on the bill, though the bill was given in evidence in the first action. Darlington v. Gray (1840) 5 Whart. (Pa.) 487.
In Lindell v. Liggett (1824) 1 Mo. 432, 14 Am. Dec. 298, it was held that a judgment for defendant in an action on an account stated, in which plaintiff offered notes in evidence, did not bar a new action on the note. The court said: "The plaintiff produced his notes, proved the execution of them, and the indorsements, but failed to prove that the notes, when due, were presented to the makers for payment. And for want of that proof, the court decided the plaintiff could not recover; and there was a verdict and judgment against him on both issues.
. . The first recovery was had on an account stated. In order to support this count by evidence, it must appear that the parties did account together; and that a balance was found to be due from one to the other. Proof of this would be direct proof; but in the absence of this the law allows of presumptive proof. The point to be proved here was that they accounted together. Lindell offered these notes to prove that; but they, so far from proving that fact to exist, proved in connection with some other evidence that the fact was utterly untrue; and it is said, because this evidence was offered, the bar must go to the evidence, and not to the fact that they accounted together."
VI. Miscellaneous cases.
A judgment for defendant in an action against the mayor and common council of a city to compel the issuance of warrants for salaries as city officers, though res judicata as to the duty of the city to issue warrants to the claimants, is not res judicata, where warrants are nevertheless issued, on the right of the holders to compel the territorial loan commissioners, by mandamus, to fund the warrants by issuing bonds therefor. Valley Bank v. Brodie (1904) 9 Ariz. 17, 76 Pac. 617. It was, however, claimed that the warrants were issued by persons having no authority to represent the city, and they were held not binding on the city.
In an action against an indorser on a promissory note, given as security for the performance of an agreement between plaintiff and a third person, a plea that plaintiff had brought an action against the third person on the agreement and that judgment had been rendered against plaintiff on a plea of nonassumpsit, was insufficient. Squire v. Dreenan (1877) 13 Can. L. J. (N. S.) 326.
A judgment for defendant in an action on bills of exchange, to which he pleads prescription, is res judicata in an action on an account current into which the bills of exchange have been carried, resulting in a balance in favor of the holder. Johnson v. Forstall (1848) 3 La. Ann. 446. Responding to the contention that the causes of action were not the same, the court said: "The debt alleged to be due by the defendants is the foundation of the plaintiff's claim. The bills in the one suit, and the account alleged to have been acknowledged in the other, are only the evidence of the debt. The indebtedness alleged in both results from the nonpayment of the accepted bills. The cause of action in both is clearly identical. The plaintiff . . . cannot now, by merely changing the form of his pleadings, avoid the consequences of the first judgment."
A judgment for defendant, in an action of debt against a constable for neglect of duty in connection with an execution placed in his hands, is a bar
to an action on his bond for the same neglect of duty. Lower Alloways Creek v. Moore (1835) 15 N. J. L. 146.
In Farnum v. Kennebec Water Dist. (1909) 95 C. C. A. 355, 170 Fed. 173, in affirming a judgment for defendant in an action on quantum meruit by a contractor who had been prevented from completing his contract, but who had been paid the monthly estimates. provided for by the contract, the court remarked that the judgment would not be a bar to any suit which plaintiff might bring in the nature of tort for a breach of the contract, or for any portion of the percentage of the estimates, retained until completion of the contract as provided therein, if there was any such portion unpaid.
In an action by a collector of excise against his deputy on his bond, it was held in Chapman v. Brainard (1796) 2 Root (Conn.) 375, that the action was not barred by a judgment for defendant in a former action, brought against him by plaintiff on book debt, in which, by agreement of the parties, he presented all his claims and demands for excise which he might or could make by the condition of the bond, the court saying that a judgment in an action of book debt was no bar to an action on bond.
In Edwards v. Baker (1888) 99 N. C. 258, 6 S. E. 255, it appeared that, plaintiff having attached goods in the hands of C. as the goods of his debtor, the debtor and defendant executed to
the third person a bond conditioned for the sale of such goods and the application of the proceeds on plaintiff's debt. The sale was apparently made by defendant, and plaintiff sued him, alleging the delivery of the goods to defendant by C. for sale, and payment of the proceeds upon the indebtedness due plaintiff. It was held that a judgment for defendant was conclusive, in a subsequent action brought by plaintiff against defendant on the bond.
In Ibester v. Ray (1896) 26 Can. S. C. 79, affirming (1895) 22 Ont. App. Rep. 12, which reversed in part (1894) 24 Ont. Rep. 497, an action was brought on a note made by a firm and indorsed by defendant, who alleged that he indorsed without consideration, for plaintiff's accommodation. Judgment was rendered in his favor and in favor of plaintiff against the firm. Plaintiff subsequently sued defendant on the judgment against the firm, and on other notes executed by the firm, alleging that he held himself out as a member of the firm. Though holding that the former judg ment was not conclusive in his favor, as to his nonliability on the notes sued on in the second action, the court held that it was conclusive as to his nonliability on the note sued on in the former action, and that there could be no recovery against him on the judgment. A. Mc. T.
E. L. TREVATHAN, Admr., etc., of Ellen Kierce, Appt.,
(Kierce's Admr. v. Farmers Bank, 174 Ky. 22, 191 S. W. 644.)
Bailment wrongful delivery - liability.
1. Where bailment is made of an article owned by two persons, of them may instruct the bailee not to deliver the thing bailed to the other, even though they are husband and wife, and if the bailee agrees to this, and, in violation of this instruction and his agreement, does deliver the thing to one bailor, his liability will be the same as though he delivered it to a stranger.
[See note on this question beginning on page 1196.]
APPEAL by plaintiff from a judgment of the Circuit Court for Hickman County in favor of the defendant bank in an action brought to recover the amount alleged to be due on three certain land notes. Reversed. The facts are stated in the opinion Messrs. M. T. Shelbourne and J. M. Brummal, Jr., for appellant.
Mr. E. T. Bullock for appellees. Carroll, J., delivered the opinion of the court:
This suit was brought by the administrator of Ellen Kierce to recover from the Farmers Bank of Columbus, $2,025.79, alleged to be due on account of the principal sum of three land notes of $466.67 each, dated March 17, 1909, together with interest thereon, executed by George Higgerson to Ellen and Pat Kierce as the purchase price of a tract of land owned by Ellen Kierce. The suit was based on the ground that these three notes, which were really owned by Mrs. Kierce, were deposited with the bank, and the cashier notified that the notes were deposited for the express purpose of applying the proceeds of their collection to the payment of a note due by the Kierces to the Union Central Life Insurance Company. That he was instructed not to allow Pat Kierce to withdraw any of the notes, or sell or dispose of them in any manner. That when they were collected the proceeds were to be applied to the payment of the insurance debt.
That, in violation of this agreement and the instructions given to him, the cashier permitted Pat Kierce to withdraw the notes and secure the proceeds thereof, the result
of the court.
being that no part of the proceeds of the notes was applied to the payment of the insurance debt.
In an amended petition a recovery was sought upon the ground that the proceeds of these notes were deposited in the bank to the credit of the joint account of Ellen and Pat Kierce, with instructions not to allow Pat Kierce to check it out; but that the bank permitted the money so deposited to be withdrawn on checks bearing the signatures of Ellen and Pat Kierce, which signatures were made, as the bank knew, by Pat Kierce alone, and without any authority from Ellen Kierce to sign her name to the checks.
On the trial of the case there was a judgment for the bank, and the administrator appeals.
The basis of the suit is to be found in the following evidence of Mrs. Trevathan, who was a daughter of Pat and Ellen Kierce, in which she relates a conversation that she says took place in October, 1909, between herself and J. P. De Boe, the cashier of the Farmers Bank:
I went to the Farmers Bank of Columbus; introduced myself to the cashier, Mr. J. P. De Boe; told him that I was Mrs. Trevathan; that I was Mrs. Kierce's daughter, and that my mother had sent me there to see if my father had tried at any time. to collect any money or interest in