Finley v. Hanbest

The opinion of the court was delivered by Woodward, J. — To this action of assumpsit the defendant pleaded very specially a former action against him by the same plaintiff, for the same cause of action, and a judgment therein against the plaintiff of 19th February 1851. The plaintiff replied nul tiel record ; but instead of concluding with a prout patet per recordum, he put himself upon the country; and the defendant having done the like, they were before the jury on the ques [194] tion, whether there was any such record as was set forth in the defendant’s plea. On producing fhe record, it appeared that though the verdict was rendered on the 19th of February 1851, judgment was not entered up until the 6th of January 1853, which was after the institution of this suit, and the competency of the evidence was objected to on this ground. We do not think it a decisive objection to the evidence that the judgment was entered subsequently to the institution of this suit; for if there had been a prior adjudication of the matters in issue between these parties, the defendant was at liberty to avail himself of it, though it had taken place pending the action: 5 Watts 121. And if correctly pleaded it would estop the plaintiff from' recovering more than his costs up to the time when the judgment was pronounced. But did a judgment of 6th January 1853, support the plea of a judgment of 19th February 1851 ? Clearly not. The variance was fatal: 1 Chitty’s Pl. 385; 2 Saunders Pl. & Ev. 748. Nor could the judgment be held to relate back to the. date of the verdict. It is not the former trial that constitutes the defence, nor the verdict, but the judgment; and until the defendant had obtained that, his record could avail him nothing. Why he suffered so long an interval to elapse between the verdict and judgment, we are not informed; but if, as is probable, it was because he failed to pay the jury fee, his negligence is not to be cured by a legal intendment that would give the judgment relation back to the date of the verdict. It was as much his duty to pay the jury fee, as to comply with any other rule of law; and until he entitled himself to the judgment, he could have no benefit from it. On the special pleading, we should be obliged to say, the record of the former recovery was improvidently admitted, but it is of no practical importance to say so, because the evidence was competent under the general issue, if the former judgment was on the same matters that are in issue here. Not only was it competent evidence under the general issue, but most of the American authorities, and especially our own, attribute the same conclusive effect to it as when specially pleaded in bar: Cist v. Zeigler, 16 S. & R. 282; Kilheffer v. Herr, 17 S. & R. 325; Marsh v. Pier, 4 R. 288; Man v. Drexel, 2 Barr 204; Betts v. Starr, 5 Conn. 550; Preston v. Harvey, 2 H. & Mun. 55; King v. Chase, 15 N. Hamp. 9. Such, indeed, is the tenor of the oft cited rule of Chief Justice De Grey, in the Duchess of Kingston’s Case: 11 State Trials 261. His language was, “ the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive between the same parties, on the same matter directly in question in another court.” [195] If, therefore, this record could be offered under the general issue with the same effect as it could be specially pleaded, the variance between the proof and the special plea is not adequate ground for reversing the judgment; and the only question is, whether the judgment in the former action was upon the same matter which is directly in question here. As the matters in controversy in both actions are determinable only by the pleadings, this was a question of law for the court, and the plaintiff had a right to have it decided on an objection to the evidence. The court overruled the plaintiff’s objection, and admitted the evidence. We shall test the soundness of the ruling, by contrasting the pleadings in the two actions. The action here is assumpsit. The plaintiff, upon proper averments in his narr., claims to recover from the defendant a large amount of taxes and incumbrances upon a certain tract of land in Palmyra township, Pike county, which he alleges the defendant agreed and promised to pay in and by a certain conditional due bill, dated 7th August 1849, and signed by the defendant, which paper is fully set out. Such is the plaintiff’s cause of action, and the plea is non assumpsit, under which I repeat the defendant may show a former judgment for the same cause. There is no question that this issue involves the making of the alleged promise, and the existence of the taxes and incumbrances referred to. The former action was a special action on the case for a deceit practised by the defendant in representing himself as the owner of the said tract of land, and inducing the plaintiff to exchange valuable property for it, when in fact he was not the owner of said tract, and his title thereto was valueless to the plaintiff. The plea there was not guilty; a simple denial of the alleged fraud. The issue thus made up involved no pecuniary liability by virtue of an express promise, but only a liability in damages for a wrong done to the plaintiff. It is manifest, from this comparison of the causes of action in the two cases, that so far from being identical, they are not of kin, and have no resemblance to each other. The one sounds in contract, the other in tort; the one affirms a promise to pay' money, the other a cheat. It may be that the due bill was given in evidence in the former suit; but if so, it was by way of inducement to the real cause of action, or as part of the res gestae. It must have come in collaterally or incidentally, for under the pleadings it could not have been the point directly in contest. Another of the rules in that admirable summary of Chief Justice' Db Grey is, that neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable. Applications of this branch of the rule [196] may be seen in Hibshman v. Dulleban, 4 Watts 183; Martin v. Gernandt, 7 Harris 124; and King v. Chase, before referred to. It is not material, I agree, that the former suit was in tort, and this casein contract; for where the same matter has been previously adjusted, the effect of the adjudication is not dependent on the form of action. Where, in trespass or trover, a plaintiff is defeated on the ground that he had no title in the chattel, he cannot waive the tort and recover in a subsequent action the value of the chattel upon an implied assumpsit: Rice v. King, 7 Johns. 20. But it is too clear for doubt that the due bill in suit here could could not have formed any substantial part of the plaintiff’s case before. The deceit consisted in misrepresenting the title and the value of the land sold; the due bill is an indemnity against liens and incumbrances upon the land. Both suits might have been well brought at the same time, and have stood together without either one working the abatement of the other, and without the plaintiff being put to his election in which he would proceed. We think, therefore, that the court erred in admitting the former judgment in evidence, and permitting it to conclude the plaintiff’s action. We see no other error on the record. The judgment is reversed and a venire de novo awarded.