Pennebaker v. Parker

Opinion by Beaver, J., The ostensible ground upon which the defendant based his points for charge, the refusal of which and the subsequent denial of his motion for judgment for the defendant, n. o. v., are complained of in the fourth, fifth and sixth assignments of error, is that the claim upon which the suit was founded was res judicata. The facts upon which this claim is raised_are stated in the third point, which briefly summarizes them : ■“ That the lum [461] ber sued for to the amount of $272.87 on present suit began before H. F. Smith, a justice of the peace, was the same lumber included in the suit brought by the plaintiff, S. E. Pennebaker v. Edmund S. Parker, commenced before H. F. Smith, Esq., the same justice, by summons dated April 6, 1904, and tried April 13, 1904, in which a judgment was rendered for the plaintiff for $19.50 and costs, which judgment was unappealed from, and on which the plaintiff caused an execution to be issued in 1904. On execution the money was made. That the parties to these actions were the same; that the claim now sued upon is res adjudicata by the former action, and said action bars a recovery in this suit.” It thus appears that the original suit was against Edmund S. Parker alone. At the trial the justice made the following entry: “ Plaintiff claims $292.37 as a balance on timber furnished for the erection of a new barn and other timber furnished for defendant. “ And now, the 13th day of April, 1904, parties met, and, examining plaintiff and defendant and hearing their allegations, judgment for plaintiff for the sum of $19.50 publicly expressed and costs, there having been a dispute as to the $272.87 as to who should pay, Parker or the contractor, for building the barn.” The present suit, as appears from the transcript of the justice, was by S. E. Pennebaker against Ed. S. Parker and J. J. Horning. In 2 Bouvier, Rawle’s edition, 898, it is said : “ In order to make a matter res judicata, there must.be a concurrence of the four conditions following: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action ; (4) identity of the quality in the persons for or against whom the claim is made.” It seems to be conceded that the claim upon which this suit was founded was originally included in the claim made before the justice in the original suit against Edmund S. Parker, but in this case the parties are different, and, if it appears by competent evidence that the claim was excluded by the justice in the original hearing, it is clear that it was not adjudicated, and that the present suit is well founded. The entry made by the [462] justice clearly shows that there was doubt as to whether the claim for $272.87, which was the exact difference between the total amount claimed and the amount for which judgment was rendered, should be paid by Parker or by the contractor for building the barn, the said contractor being, as appears from the testimony, J. J. Horning, who is joined with Parker as defendant in the present suit. The plaintiff and the justice of the peace, before whom the original suit was tried, were allowed to testify as to the withdrawal of the claim for the lumber entering into the construction of the barn. Objection was made to their testimony, and its admission constitutes the first and second assignments of error. The ground of objection was that the testimony contradicted the record of the justice made at the time. If this were so, of course the testimony was incompetent. An examination of the testimony leads us to the conclusion, however, that it was not in any sense a contradiction of the record of the justice. In may be regarded as an explanation of the entry, but it is in no sense a contradiction. A single answer of the justice describes the situation : “ Q. State what Mr. Pennebaker said with reference to the withdrawal of that claim ? A. I understood Mr. Pennebaker to-say that he-would withdraw the consideration of that $272.87. I have here marked, after rendering the judgment, sufficient to show that I did not consider it--.” In Coleman’s Appeal, 62 Pa. 252, it was held, as stated in the syllabus : “ Whenever a judgment in a former case is relied on as conclusive in another, it may be shown by evidence aliunde, not inconsistent with the record, that the particular point was not adjudicated, if in law judgment could have been rendered on any other.” See also Susquehanna Mut. Fire Ins. Co. v. Mardorf, 152 Pa. 22. That extrinsic evidence is admissible to show what was adjudicated, see Hartman v. Pittsburg Incline Plane Co., 28 Pa. Superior Ct. 360. We have, upon the record of the justice, the statement that there were two distinct items in the original claim : (1) “A balance on timber furnished for the erection of a new barn,” and (2) “ other timber furnished for defendant,” and, second, that as to the first there was ‘‘ a dispute as to the $272.87 as to who should pay, Parker or the contractor for building the [463] barn.” We have also the fact that the second suit was brought against the appellant and Horning, the contractor. These entries of themselves would clearly indicate that the claim for the timber furnished for the barn was not passed upon by the justice for the apparently good reasons : First, that the liability for the items arose under different contractual relations, and, second, between different parties. It was not in any sense a contradiction of these entries in this record to show that for those reasons the claim for the barn timber was withdrawn and not considered. This testimony in explanation of the entry of the justice having been properly admitted, we can see nothing erroneous in the submission of the question by the court to the jury, as complained of in the third assignment of error. The question of the withdrawal of the claim, upon which the present suit is based, was one of fact, which was fairly submitted by the court. Upon a consideration of the whole case, we see nothing erroneous which calls for our interference. Judgment affirmed.