Scully v. Lowenstein

ChalmeRS, J., delivered the opinion of the court. In the suit at law between these parties, the plaintiff counted, first, upon an implied assumpsit; and, second, upon an express contract. Defendants pleaded non assumpsit to the first count, and to the second they pleaded a denial of the special eoatract alleged, and averred a different contract in writing, of which they made profert. Upon these pleas plaintiff took issue, and the verdict and judgment rendered thereon conclusively determined that there was no such implied undertaking as was alleged by plaintiff, and that no such express contract was, in fact, consummated. But the object of this bill is to reform the written contract as made, upon the ground that by mistake it failed to conform to and express the true inten-j tion of the parties ; and then, when reformed, to make defendants liable for the injury accruing to plaintiff by reason of the fact that, through defendants’ fault, he was prevented from performing the work as intended, and thereby debarred of reaping its full benefits. [654] It is evident that the judgment at law cannot be pleaded as res adjudícala against this bill. The action at law (upon the second count) was upon a special contract. It was defeated by the production of a written contract, different from that averred. This suit in chancery is to reform the written contract, so as to make it speak the true intent of the parties. Manifestly a court of law was incompetent to administer such relief, or even to consider the question of whether the written contract failed to speak the true intent; and if testimony was offered in that court with such a view, it must have been excluded. The broadest statement of the principle of res adjudicata would extend it only to such questions as were litigated, or might have been litigated, in the former suit; and, inasmuch as the question of whether there was a mistake in the written contract, by which it failed to express the true agreement of the parties, could not have been considered or adjudged in a court of law, the plea in this case was not good in so far as the bill sought to reform the contract, and to base the claim for relief upon a breach of it as reformed. Mosby v. Wall, 23 Miss. 81. It will not be competent, however, to administer relief, except by showing a liability on an express agreement. The question of implied liability was conclusively adjudged in the action at law, under the first count. Decree reversed and cause remanded, with leave to defendants to answer within ninety days.