Brown v. Floding

Beck, P. J. Under the pleadings and the evidence in this case, the court did not err in overruling the demurrer to the plaintiff’s petition. While the contract as originally entered into might not have been enforceable, on the ground that it was without consideration and unilateral, the part performance of the contract and the services rendered in the business by tlie petitioner, as set forth and alleged in his petition, supplied the lack of mutuality and rendered the contract enforceable and a breach of it actionable. The defendant could not take advantage of the offer of the petitioner, as set forth in the pleadings of the latter, and receive the benefit of his services and then breach the contract, without rendering himself liable. But we are of tlie opinion that the court erred in refusing to consider and give effect to the plea in bar filed in this case. Consideration being given to all the pleadings and the evidence, the plea in bar should have been sustained. The plaintiff had gone into the Federal court, the court having jurisdiction of the matter, and had set up his rights under the contract, and other matters which' gave him an interest in the litigation, and his rights under the contract and under the facts pleaded had been adjudicated, and under that adjudication the assignee of all his rights in the [405] business received the benefits of a judgment in its favor. This judgment in favor of the plaintiff's assignee, which had been made a party by intervention, was one in favor of the plaintiff himself, and he is concluded by that judgment and estopped from further proceeding against the defendant. Judgment reversed. All the Justices concur.