Wade v. Peters

BENSON, J. — 1. The conclusion which we have reached renders it unnecessary to discuss any of the assignments of error except the ruling of the trial court in sustaining a demurrer to the defense of res judicata. At the outset, it is observed that the complaint in the first action, when tested by the law as enunciated in the case of Oregon Home Builders v. Crowley, 87 Or. 517 (170 Pac. 718, 171 Pac. 214), is a perfectly good complaint, and every feature which distinguishes that case from Lueddemann v. Rudolf, 79 Or. 249 (154 Pac. 116, 155 Pac. 172), is present in the instant case. The additional allegations in the complaint in the present action do not add anything to the vitality of the corresponding pleading in the former, wherein the authorization is set out, followed by allegations of complete performance by the plaintiff of the things to be done by him thereunder. Under these circumstances it remains to consider whether the judgment upon demurrer in the prior case is a bar [238] to the present action. In Hume v. Woodruff, 26 Or. 373 (38 Pac. 191), the general rule is approved, holding that “a decree sustaining a demurrer to a complaint and dismissing the suit because it does not state facts sufficient to constitute a cause 'of suit, is, until reversed, a final determination of the issues presented by such complaint, and can be pleaded as a bar to a subsequent action for the same cause.” In the case of O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004), this doctrine is again asserted, but . announcing the modification of the rule to the effect that where an essential allegation is wanting in a complaint to which a demurrer is sustained, a decree of dismissal is not a bar to a subsequent suit between the same parties, concerning the same subject matter, if the missing essential averment is supplied in the second pleading. A very able discussion of the question involved herein, applying the principles which distinguish and harmonize the two cases above cited, is to be found in Spicer v. United States, 5 Court of Claims Rep. 34. In this case plaintiff brought an action for breach of contract in refusing to inspect and receive certain horses. A demurrer was sustained to the complaint, for the reason that it contained no allegation that the claimant had ever delivered or offered to deliver any portion of the horses which he had contracted to furnish. The action having’ been dismissed, claimant began a second action for the same cause, in which there was the added averment in the petition, “that he was ready and willing and offered to comply with his said contract, and deliver the horses, etc.” The defendants pleaded the former action in bar, and in the course of an able and exhaustive [239] opinion, wherein it is held that the plea is not well taken, the court says: “After a somewhat extended review of this branch of the law, I am inclined to think that no case can be found, and certainly none in the federal courts, where a judgment rendered on demurrer, alleging the want of a material fact in the declaration, has been deemed a bar to a second action presented by a declaration wherein the material fact omitted from the first is sufficiently averred. The concurrent ruling of both the American and English courts seems to be that a judgment rendered for the want of a specific fact in the declaration is not a judgment upon the merits.” This concise statement of the law is clear, and accurate, and is confirmed by our own investigation of the authorities. It is of no avail to the plaintiff in the present action however, since a careful examination of the complaint in the prior action discloses that no essential allegation is omitted therefrom, and the later pleading contains no substantial averment which is not found in the former. This being true, it follows that plaintiff’s only effective recourse in the first action was to have appealed from the judgment upon the demurrer, and having failed to do so, he is barred from prosecuting the present proceeding. Gould v. Evansville etc. R. R. Co., 91 U. S. 526. The judgment must be reversed and the cause remanded with directions to enter judgment for the defendant. Bevebsed and Bemanded With Directions.