Savage v. . McGlawhorn

Adams, J. This action is' prosecuted by the plaintiff to recover damages for the defendants’ alleged breach of a contract. The plaintiff can recover only, by proof of the contract, his compliance with its terms, and the defendants’ breach. . The defendants -offered the judgment roll of a justice of the peace in an action entitled “R. E. McGlawhorn v. David Savage.” Savage is the plaintiff in the present action and McGlawhorn is one of the defendants. In the action before the justice the plaintiff “complained for possession of the house occupied by the defendant, by reason of a forfeiture of the contract, the defendant refusing to work the crops.” The parties appeared and offered evidence and “judgment was rendered that the plaintiff be put in possession of the house and recover the cost of the action.” This judgment was offered by the defendants as an estoppel against the plaintiff, but was admitted only in corroboration of the evidence of the defendants that the plaintiff had violated the contract. This ruling presents the vital exception. If the contract on which the plaintiff bases this action is the contract he was adjudged by the justice of the peace to have violated he is *429 estopped. He will not be permitted to recover damages for tbe breach of a contract with which he has refused to comply. So the question is whether the justice’s judgment is evidence to be considered by the jury in determining the disagreement of the parties on this point. Clothing Co. v. Hay, 163 N. C., 495. One of the tests of estoppel by judgment is identity of issues. Gillam v. Edmonson, 154 N. C., 127. In the trial before the magistrate the existence of the contract and its breach by the defendant (plaintiff here) were matters in issue; in this action the existence of .the contract and the compliance of the plaintiff (defendant in the other action) are matters in issue. The judgment in either action necessarily involves a contract or contracts and the breach. It is suggested that the judgment roll does not .specify the contract adjudged to have been forfeited; but the ground of the forfeiture was Savage’s refusal to work the crop. If the judgment of the justice contains a latent ambiguity, parol evidence not inconsistent with the record is admissible to identify the point or issue therein adjudicated. Yates v. Yates, 81 N. C., 397; Person v. Roberts, 159 N. C., 168, 173; Whitaker v. Garren, 167 N. C., 658; Cropsey v. Markham, 171 N. C., 43. It is insisted by the appellee that there is no mutuality of parties, the only plaintiff in the original action being one of the present defendants. Technically this is true; but the plaintiff’s testimony admits of- the construction that.only one contract was executed and that the original action was brought by the party with whom it was made. The fact that Gorman was a partner with McGlawhom, hut was not a party to the original action should .not be permitted to defeat the merits, .especially when it appears that the plaintiff with knowledge of the partnership did not demur for a defect of parties. New trial.