Toomy v. Hale

Paterson, J. This action was brought to recover the sum of seventeen hundred and seventy-five dollars, the reasonable value of services alleged to have been rendered at defendant’s instance and request. The court found that in a former action brought by plaintiff against defendant it was adjudged that plaintiff did not render to defendant at the latter’s instance or request the services alleged in the complaint in that action, and that defendant was not indebted to plaintiff therefor; that the services mentioned in the complaint herein are the same services alleged in the complaint [173] in the former action. The judgment in the former action was held to be a bar to plaintiff's cause of action set up herein, and judgment was entered for defendant. From this judgment and an order denying his motion for a new trial plaintiff has appealed. Appellant contends that the complaint in the former action was upon an account stated, or upon a new contract, by the terms of which the defendant agreed to pay, and plaintiff agreed to accept, one thousand dollars in payment of the services alleged to have been rendered. The allegations of that complaint were substantially as follows: defendant employed plaintiff to find a party who would take a lease of certain premises for a term of years, and promised to pay him therefor out of the first rents collected two and one-half per cent of the amount of rent to be paid during the term; that plaintiff found a party willing to take the premises, and on October 10, 1889, said party and defendant entered into a contract of lease for a term of ten years at a rental of six hundred and twenty-five dollars per month, payable monthly in advance, from April 10, 1890; that plaintiff's compensation under said agreement amounted to the sum of eighteen hundred and seventy-five dollars; “ that thereafter there was an accounting by and between said plaintiff and defendant for and about the compensation to be paid by said defendant to said plaintiff for said services, and in consideration of immediate payment by said defendant to said plaintiff •of the sum of one thousand dollars, it was then and there agreed by and between said plaintiff and said defendant, on or about the fifteenth day of October, in lieu of the agreement hereinbefore mentioned, the said defendant should pay, and said plaintiff receive, in full satisfaction for said services, the sum of one thousand dollars cash, and defendant then and there paid to plaintiff the sum of one hundred dollars on account, but, though often requested, said defendant has failed and refused to pay the remainder of said sum, to wit: [174] the sum of nine hundred dollars, which is now due and owing from defendant to plaintiff.” The care with which the particulars of the original contract—the character of services to be performed, the exact amount to be paid therefor, and manner of payment—and the result of plaintiff’s efforts under it, are set forth in the complaint in the former action, indicate that the pleader had in view something more than merely a declaration of an account stated. The complaint was evidently framed for a double purpose, and, as there was no demurrer for uncertainty, or on the ground that two causes of action were improperly united, there is no doubt the plaintiff could have used it as a basis of recovery on either the original contract alleged and services performed thereunder, or on the new agreement that the plaintiff should accept one thousand dollars in consideration of immediate payment. Having gone to trial upon the issues thus tendered by himself, and the court having determined all of them against him, he is now bound by the decision. He cannot litigate the same question twice. In the fortner action the court decided that the services alleged were performed at the request of and as the agent of the party to whom the premises were leased, and not at the request of defendant; and, although in that action an express promise to pay a certain amount was alleged, the finding is conclusive in this action on the same question that was involved, viz: were the services performed at the request or instance of defendant? The judgment and order are affirmed. Harrison, J., and Garoutte, J., concurred.