Nowak v. Knight

Collins, J. In respect to the point made by counsel for respondent that the contents of the receipt known upon the trial as “Exhibit A” have not been made known to this court, it is only necessary to say that it appears in full in the case as the same has been resettled by the judge of the district court, upon appellant’s motion. According to its terms, which are unmistakable, the right to receive any compensation whatsoever for services, or to retain the note, the only consideration therefor being the services which the defendant contemporaneously undertook and agreed to render, depended upon his success in securing a homestead entry upon the land for his client Nowak. If he failed in his attempt to obtain such entry, he agreed to cancel and deliver up the evidence of indebtedness. The fact that subsequently, upon defendant’s failure, the plaintiff made an entry of the same, through the efforts of another person, did not benefit the defendant; nor did it affect the unqualified condition found in his contract. It was therefore proper and important, under the pleadings, for the plaintiff to show that the defendant did not obtain an entry of the land for him, and that his efforts to do so were unsuccessful. This he attempted to do upon the trial by both parol and documentary evidence, all of which was excluded by the court. It is 243 possible that when making the effort to establish their contention in reference to the homestead entry, and that it was not obtained by the defendant or by reason of his services, the plaintiff’s counsel offered some documentary evidence which was objectionable, because immaterial or incomplete; but any testimony which tended to show that defendant failed in his undertaking (and there was such offered, parol as well as documentary) should have been received. When dismissing the case the court stated, as a reason for its course, that the issue between the parties in interest had beenlitigated before, and fully determined. We assume that the court had .reference to what appeared in the judgment-roll in the case wherein De-wees was plaintiff, and Nowak and Koktan defendants, which had been received in evidence in plaintiff’s behalf. In that action Dewees, according to his complaint, based his right to recover upon the note which this defendant had sold and indorsed to him, as an innocent purchaser for value and before its maturity. The presumption is that he recovered as such, and not because this plaintiff failed to establish a defence which would have only been available if Dewees had not been a bona fide holder of. negotiable paper. Again, this defendant was not a party to that litigation, nor does it appear that he knew of it. He was neither bound nor prejudiced by the result, and therefore cannot take advantage of it. No party, as a general rule, is bound in a subsequent proceeding by a judgment, unless the adverse party, now seeking to secure the benefit of the former adjudication, would have been prejudiced by it if it had been determined the other way. The operation of estoppel must be mutual. Both litigants must alike be concluded, or the proceedings cannot be set up as conclusive on either. 1 Greenl. Ev. § 524; Redmond v. Coffin, 2 Dev. Eq. 437, 443; Wood v. Davis, 7 Cranch, 271; Simpson v. Jones, 2 Sneed, 36; 1 Herm. Estop. § 154. The judgment in the Dewees Case did not estop the plaintiff from recovering in, this. Upon the other hand, it was evidence of his right to recover. Order reversed.