Burnett v. Marrs

Mr. Justice Bean delivered the opinion of the court. 1. Defendants, upon this appeal, assign as error that the court erred in rendering judgment for plaintiff, for the reason that plaintiff failed to prove that the contract [601] set up was executed for the C. E. McKenna Company by any one who had authority to bind the company. The allegation in the complaint as to the execution of the contract is contained in paragraph 3 thereof, which paragraph is admitted by defendants in their answer. Therefore there was no issue as to the execution of the contract. Defendants also set forth the execution of the agreement in writing, and for a second assignment of error claim that the same is void for want of mutuality. The contract set out in the complaint, while somewhat informal, being accepted by the C. E. McKenna Company and acted upon by both parties, was, in effect, a mutual contract. The acceptance was a consideration for the agreement upon the part of defendants, and bound both parties to its conditions. The testimony shows that defendants made payments for advertisements, pursuant to the terms of the writing. The contract authorized the advertising and fixed the price therefor, and, the work having been done, the defendants are certainly liable to pay for such. We think this contention is without merit. 2. It is also contended by counsel for defendants that the judgment in the former action upon the demurrer and motion to strike out plaintiff’s complaint is a bar to this action, and that the court erred in failing to so find as requested by defendants. This is the real point for this court to determine. It will be noticed from the statement of the pleadings that the first action, to which a general demurrer was sustained, was determined upon a motion to strike out an amended answer because an amendment was inserted therein to the effect that the C. E. McKenna Company was a corporation. A judgment rendered on a demurrer is equally conclusive, by way of estoppel, of the facts confessed by the demurrer, as would be a verdict and judgment finding the same [602] facts. But a judgment on demurrer, based merely on formal or technical defects and raising only a question of pleading, is no bar to a second action for the same cause. Where the ground of the demurrer is the omission of a material allegation from plaintiff’s pleading, a judgment sustaining the demurrer will not prevent the maintenance of a new suit on the same cause of action, in which the new declaration or complaint supplies the missing averment. 23 Cyc. 1152; 1 Freeman, Judgments (4 ed.) § 267; O’Hara v. Parker, 27 Or. 156, 163 (39 Pac. 1004) ; Hughes v. Walker, 14 Or. 481 (13 Pac. 450) ; Hoover v. King, 43 Or. 281, 286 (72 Pac. 880: 65 L. R. A. 790: 99 Am. St. Rep. 754). . No judgment can be available as an estoppel unless it is a judgment on the merits. 1 Freeman, Judgments (4 ed.) § 260. A judgment cannot be set up in bar of a subsequent action unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definitive manner. 23 Cyc. 1126. The determination of a motion or summary application is not res adjudícala, so as to prevent the parties from litigating the same matters again in the more regular form of an action, especially if the matter affected by the motion was only incidental or collateral to the determination of the main controversy. 23 Cyc. 1119. In the case of Pruitt v. Muldrick, 39 Or. 353, at page 358 (65 Pac. 20, at page 21), the following language was used by this court: “ ‘In order that a judgment may constitute a bar to another suit,’ says Mr. Justice Field in Hughes v. United States, 4 Wall. 232 [18 L. Ed. 303], ‘it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and it must be determined on its merits. If the first suit was dismissed for defect of pleading, or parties, [603] or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any'ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” 3. In the former action commenced by plaintiff against defendants it was determined that there was a defect in the complaint, and the demurrer was sustained for that reason. The judgment in that action did not go to the merits and is not a bar to this aetion. The fact that the plaintiff appealed to the circuit court, where the judgment of the justice’s court was sustained, did not change the character of the judgment; nor did the attempted amendment of the complaint in the circuit court which was stricken out on motion. In neither court were the merits of the controversy between the parties heard or determined. 4. There was no error in the trial court ignoring the allegation in the answer as to the former judgment. It was not a material allegation, and necessitated no finding. The case of Waggy v. Scott, 29 Or. 386 (45 Pac. 774), cited and relied upon by defendants’ counsel, is not in conflict with, but in support of, this ruling. 5. Defendants offered no evidence other than the record of the judgment referred to, and was therefore not entitled to a finding upon the question of giving notice to the plaintiff in attempting to rescind the contract. The circuit court found that the contract had been carried out by plaintiff. It is claimed that there was not sufficient evidence to support the findings made by the trial court. After a careful examination of the evidence, we think the same supports the findings, and they should not be disturbed. The evidence tends to show that the advertising was done as claimed by plaintiff, and this is not disputed. Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.