Inhabitants of Embden v. Lisherness

Foster, J. Action of debt, brought under § 175, c. 6, R. S., to recover $207, the amount of tax assessed upon defendant’s real estate for the year 1889. It is admitted tbat tbe tax was legally assessed and has never been paid; tbat at tbe December term of tbis court for tbe county of Somerset, an action of debt was tried, in wbicb Stillman A. Walker, collector of taxes for tbe plaintiff town, was plaintiff, and against this same defendant; that tbe suit was brought by tbe collector under § 141, c. 6, R. S., to recover the same tax. Tbe plea in that action was tbe general issue. Tbe jury returned a general verdict for tbe defendant. In tbe present action tbe plea is tbe general issue, with brief statement of tbe former judgment as a bar to tbe maintenance of tbis suit. Tbe plaintiff in tbis action offered to prove by parol that tbe only issue upon wbicb said former cause was tried was that of. [579] “due notice and demand” given to and made upon the defendant by Walker as collector before the bringing of said former suit. This testimony was objected to by the defendant, and the only question before the court is upon the admissibility of this evidence. If admissible, judgment is to be rendered for the plaintiff. We think it admissible. At the former trial at which the general issue was pleaded, it was competent for the defendant to show that no “ due notice ” had been given before the bringing of the suit as required by the statute authorizing a collector of taxes to sue in his own name. This was the issue presented, and upon which the defendant prevailed. The merits of the case except as to the question of due notice were not passed upon. The gist of the present suit is whether the defendant owes the tax for which he is sued. The only defense is that the collector of taxes brought suit for the same at a former term, and in the trial the defendant prevailed. In ■ that suit it was essential to show “ due notice ” as well as a legal tax. Failure to do either, and the verdict would be the same. Both allegations in the writ had to be established to make out a prima facie case. The record of that case is before us; but with the general issue alone pleaded, and with a general verdict of “ does not owe,” how are we enabled to tell upon which allegation the defendant succeeded? There is nothing as appears from the record to determine this question. Whether it was for want of due notice, or the want of a legal tax, can be shown only by evidence aliunde the record, and the point upon which the case turned must necessarily be proved, if proved at all, by such evidence. This is what the plaintiff in the present suit offered to prove. A judgment, in order to be conclusive as an estoppel, must have been rendered upon the merits of the case, and the same subject matter. Clark v. Young, 1 Cranch, 181, 194; Phelps v. Harris, 101 U. S. 370; Dunlap v. Glidden, 34 Maine, 517, 519; Hill v. Morse, 61 Maine, 541; Smith v. Brunswick, 80 Maine, 189; Young v. Pritchard, 75 Maine, 513, 517; Arnold v. Arnold, 17 Pick. 4; Cunningham v. Foster, 49 Maine, 68, 70. [580] It is well settled that where several issues are presented by the declaration and pleadings, and the record fails to show upon which in fact the judgment was rendered, it is competent to show the fact by evidence aliunde, not however to contradict the record but in support of it. Dunlap v. Glidden, supra; Jones v. Perkins, 54 Maine, 393, 396; Rogers v. Libbey, 35 Maine, 200; Chase v. Walker, 26 Maine, 555; Cunningham v. Foster, 49 Maine, 68, and cases there cited. See also Lander v. Arno, 65 Maine, 26; Hood v. Hood, 110 Mass, 463; Blodgett v. Dow, 81 Maine, 197, 201. See also Walker v. Chase, 53 Maine 258, a leading case in this State where this doctrine is fully considered. ' While the rule is strict that evidence aliunde cannot be introduced to contradict the record, it is a universally acknowledged rule that a judgment obtained upon, the ground that an alleged demand is not yet due, is no bar to an action subsequently brought on the same demand, after it has fallen due. Freeman on Judgments, §§ 268, 274. A suit upon a bond before condition broken, in which the defendant prevails on that account, is no bar to an action brought against the same defendant after condition broken. McFarlane v. Cushman, 21 Wis. 401. So where a suit is brought for several demands, some of which are due, and others of which are not due, and a general verdict is given for the plaintiff, it has been held that he may show in a second suit brought upon the demands not due in the trial in the first suit, that they were disallowed because not due. Kane v. Fisher, 2 Watts, 246; Ball v. Hopkins, 7 Johns. 22. Thus in Perkins v. Parker, 10 Allen, 22, in a real action where a former judgment in bar was set up in defense, the court held that it was competent for the demandant to introduce parol evidence that there were two distinct grounds of defense relied upon, one of which involved only the question whether his grantor was seized, at the time of the making and delivery of the deed to him, and that this ground of defense was established by proof, and that for this cause solely the judgment was rendered in favor of the [581] defendant, and not by reason of any defect in tbe title of bis grantor. In tbe case of Whiting v. Burger, 78 Maine, 287, 296, our court say: “ When the record does not disclose the precise issues raised and claims considered and which pass into judgment in tbe action, they may be shown by parol evidence.” See also the case of Nashua and Lowell Railroad v. Boston and Lowell Railroad, 164 Mass. 222, 226 where the court bold that where there are several demands sued in one action and the plaintiff obtains a general verdict and judgment, the record of such judgment is not conclusive evidence that all of the demands were included therein, and will not bar a subsequent action for such as in fact were not adjudicated upon. Tbe general tendency of decisions is in accord with this doctrine. In tbe recent case of DeSollar v. Hanscome, 158 U. S. 26, the court say: “ Now it is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment. It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of tbe judgment it must appear, either upon tbe face of tbe record or be shown by extrinsic evidence, that tbe precise question was raised and determined in the former suit.” Russell v. Place, 94 U. S. 606. This case comes within tbe rule laid down in tbe foregoing decisions. Tbe evidence offered is not contradictory of tbe record in any way, but rather in aid of it, by showing what question was determined by tbe jury in finding their verdict. That question was one where want of due notice entitled tbe defendánt to prevail. Had tbe suit been upon a note wbicb was not due, and judgment been given for tbe defendant because tbe suit was prematurely commenced, that fact undoubtedly could be shown by parol in a subsequent suit after tbe note bad become due, and would constitute no bar to tbe second suit. Judgment for plaintiff, for $9i07 and interest from date of writ.