Cropsey v. . Markham

Allen, J. Tbe plaintiff sues to recover $117, alleged to be due for services rendered after tbe death of tbe. intestate of tbe defendant and before tbe qualification of tbe defendant as administrator. Tbe defendant denies tbe indebtedness, and pleads an estoppel by former judgment. Tbe plaintiff replies tbat tbe items in controversy in this action did not enter into the former judgment, and be ba.s offered parol evidence to sustain bis allegation, which was excluded by tbe court. Was this evidence competent? Tbe answer to this question requires an examination of tbe record in tbe former action and tbe determination of tbe effect of tbe judgment rendered therein. Under tbe common-law system, tbe pleadings being more accurate and precise than at tbe present day, and having as their object to reduce tbe controversy to a single issue, there was but little difficulty in determining tbe question adjudicated, and tbe rule prevailed of trying tbe plea of estoppel by former judgment by an inspection of tbe record alone (Yates v. Yates, 81 N. C., 403; Whitaker v. Garren, 167 N. C., 662); but as under tbe modern system of pleadings records are some *45 times vague and uncertain, tbis rule bas been modified, but not to tbe extent of destroying tbe integrity and conclusiveness of tbe judgment as to matters tbat do appear on.tbe record. Long v. Baugas, 24 N. C., 290; Yates v. Yates, 81 N. C., 403; Bryan v. Malloy, 90 N. C., 513; Person v. Roberts, 159 N. C., 173; Clothing Co. v. Hay, 163 N. C., 499; Whitaker v. Garren, 167 N. C., 662. In Bryan v. Malloy the Court, after discussing tbe question, deduces tbe following as tbe controlling principle: “Tbe principle established in these adjudications is tbat parol proof is admissible and only admissible in aid of tbe record; tbat is, whenever tbe record of tbe first trial fails to disclose tbe precise point on which it was decided, it is competent for tbe party pleadng it as an estoppel to aver tbe identity of tbe point or question on which tbe decision was bad, and to support it by proof.” If, then, parol evidence can only be admitted in aid of tbe record, and when it does not disclose tbe point decided, we must look to tbe record in tbe former action, and it must be examined in tbe light of tbe authorities which show what tbe law says enters into and is concluded by tbe judgment. Tbe Court said in Tyler v. Capehart, 125 N. C., 64: “A judgment is decisive of the points raised by tbe pleadings, or which might be properly predicated upon them; but does not embrace any matters which might have been brought into tbe litigation, or cause of action which tbe plaintiff might have joined, but which in fact are neither joined nor embraced by tbe pleadings”; and in Coltrane v. Laughlin, 157 N. C., 282: “It is well recognized here and elsewhere that when a court having jurisdiction of a cause and tbe parties renders judgment therein, it estops the parties and their privies as to all issuable matter contained in tbe pleadings, and though not issuable in tbe technical sense, it concludes, among other things, as to all matters within tbe scope of tbe pleadings which are material and relevant and were in fact investigated and determined on tbe bearing. Tbis language from these two cases was quoted with approval in Ferrebee v. Sawyer, 167 N. C., 203, and many other authorities were there cited in support of tbe principle. We have, then, tbe rule established tbat parol evidence is only permissible in aid of the record when it is uncertain and does not show clearly the matters adjudicated, and not for tbe purpose of. contradicting it, and that the judgment estops as to all issuable matters contained in tbe pleadings; and if tbis rule is applied to tbe record in tbe former action it is clear that tbe plaintiff is estopped. In tbis action tbe plaintiff sued to recover $117 for services alleged to have been rendered. *46 In the former action between the same parties he sued to recover $520.15 alleged to be due for services. The defendant in the former action asked for a bill of particulars, which was filed by the plaintiff and in which appears the item of $117 as a part of the $520.15. The defendant denied any indebtedness to the plaintiff and an issue of indebtedness was submitted to the jury and answered $153.83, and judgment was entered upon the verdict. As wa.s said in Wiggins v. Guthrie, 101 N. C., 675, speaking of the statute requiring a bill of particulars: “This enactment, which, in case of a disregard of the demand, shuts out all proof of the items of the claim coming from any witness (and does not close the mouth of the party making it alone), is intended to meet the case of a'complaint that does not set out the particulars, and confine the evidence at the trial to such as are set forth. Its aim is to supply an omission to give them in the pleadings, and hence, when furnished, they become substantially and in legal effect a part of the complaint itself.” If so, and the bill of particulars became a part of the complaint, each item of the bill was put in issue by the denial in the answer, and as the issue submitted to the jury was comprehensive enough to permit the introduction of evidence upon all the items, the judgment concludes as to all and is an adjudication that each item was litigated, and as the facts therefore appear on the record, parol evidence will not be received to contradict them. If, as the plaintiff contends, the fact is otherwise, and he was prevented from introducing his evidence on the former trial by the rulings of the judge, his remedy was to appeal from the judgment rendered or to strike out from the bill of particulars the items that are involved in this action, and his failure to do so will not justify us in destroying the integrity of the judgment which has been rendered. There is also much authority in this State in support of the contention of the defendant that no debt can be created against the estate of an intestate by matters occurring after his death, but it is not necessary to consider that question. Devane v. Royall, 52 N. C., 426; Lindsay v. Darden, 124 N. C., 309; Kelly v. Odum, 139 N. C., 282, and cases cited. "We find no error. Affirmed.