Arthur Fritsch Foundry & Machine Co. v. Goodwin Manufacturing Co.

BLAND, P. J. 1. The plaintiff: clearly made out a prima facie case entitling it to recover for the value of the machinery furnished. No countervailing evidence on the merits was offered by defendant. It is therefore evident that the learned trial judge was of the opinion that the judgment in the former action was a bar. to a recovery in the present action. The correctness of this ruling is the only question presented by the record for decision. It is the well-settled law of this — 421 — State that where machinery, or other articles are furnished a defendant by plaintiff, under a special contract, that are retained by the defendant, though they do not come up to the requirements of the contract, yet if they are of value to the- defendant, it will be liable to the plaintiff for such value, less whatever damages it may have sustained by plaintiff’s failure to comply with the contract. Rude v. Mitchell, 97 Mo. 365; Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98; Keith v. Ridge, 146 Mo. 90; The Globe Light & Heat Co. v. Doud, 47 Mo. App. 439; West v. Freeman, 76 Mo. App. 96. 2. Section 593, of the code of civil procedure provides that: “The plaintiff may unite in the same petition several causes of action, . . . where they all arise out of: First, the same transaction or transactions connected with the same subject of action, or, second, contract, expressed or impliécl. . . But the causes of action so united must all belong to one of these classes, . . . and must be separately stated. ’ ’ By virtue of this section the plaintiff might have united in its petition in the first suit, a count in assumpsit for the value of the machinery. The Globe Light & Heat Co. v. Doud, supra; Moore v. Gaus & Sons Mfg. Co., 113 Mo. l. c. 98; Brinkman v. Hunter, 73 Mo. l. c. 178. And thus been prepared to meet any state of the proof, or it might have sued in assumpsit indebitatus, offered the contract in evidence and showed a full compliance on its part with all of the conditions of said contract and recovered the contract price, or if it had failed to show a full performance, but that defendant had accepted the machinery and that the same was of value to it, could have recovered such value: Mansur v. Botts, 80 Mo. 651; Williams v. Railroad, 112 Mo. l. c. 491; Moore v. Gaus & Sons Mfg. Co., 113 Mo. l. c. 107; Squire v. Brewing Co., 90 Mo. App. 462. Plaintiff in the first suit chose to sue on the contract and take its chances to show a performance and thus recover the full contract price. It failed in that suit — 422 — and after judgment against it, now seeks to recover the-value of the same machinery furnished in pursuance of the same contract to the same defendant. No new facts have intervened since the judgment and the plaintiff has acquired no new rights. The form of action in this suit is different front the form of action in the former suit, hut this is not material if the parties and the issues aré the same. The-pleadings in the former suit raise three issues of fact: First, whether or not the contract was entered into; second, whether or not it was subsequently modified as was alleged in the petition; and, third, whether or not the plaintiff kept and performed all of the conditions on its-part. Aside from the question of res adjudicata, the pleadings in the present suit raise these issues of fact: "Whether or not plaintiff furnished the defendant at its-' special instance and request, in the year 1901, one hydraulic press, one hydraulic pump and one elevator that was available to the defendant, and whether or not the defendant received and accepted the machinery, and if so, what was the money value of the machinery so furnished. The evidence on the part of the plaintiff is- substantially the same in both suits. Under the instructions given to the jury in the former suit they may have found that the machinery was-not furnished at all; or, if furnished, it did not correspond with the specifications; or, that it did not come up-to the specifications as alleged to.have been modified, but. that defendant did not agree to the modifications ;■ or, they may have found that the- elevator, though delivered was not erected or that the knives were not delivered; or, they may have found.that the plaintiff" failed to prove its case in its entire scope. But for the purpose of the decision of the question under consideration, we think it immaterial whether plaintiff failed to prove the allegations of his petition in their entire-scope, or merely failed to prove some one of its allegations essential to its right of recovery on the contract. — 423 — In the- first suit, to entitle the plaintiff to recover, it was required to show exact performance of the contract on its part in every particular. In the present suit to entitle it to recover it was not required to prove a contract, hut only facts from which the law .will imply a contract, i. e., that at defendant’s request plaintiff furnished it machinery which defendant had retained and that it was of some value. The first suit was on an express contract; the present one is on an implied one. ■The contracts are entirely different and it matters not that they both seek to recover damages for the same article, they are separate and distinct causes of action; as distinct as .is a contract, all the terms of which the parties have agreed to beforehand and then reduced to writing and signed, from a contract which the parties had not agreed to at all, but which the law implies from their conduct. There is, therefore, no splitting of the cause of action by the bringing of the second suit, and the rule which affords but one cause of action on an entire contract is not violated. There is but one issue that is necessarily common to both suits, to-wit, whether or not plaintiff performed the contract; as to this issue plaintiff is estopped, by the former judgment. If any other issue or issues were determined in the first suit that are involved in the present one, the fact is not disclosed by the record before us. In Russell v. Place, 94 U. S. l. c. 608, Justice Fields said: “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either, that the precise question was raised and determined in the' former suit. If there be any uncertainty on this head in the record (as, for example, if d appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and — 424 — upon wliieli the judgment was rendered), the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.” The case at bar clearly comes within the doctrine of the Russell case and we conclude that plaintiff is not ’ estopped by the judgment in the first suit to prosecute the present one. The judgment is reversed and the cause remanded. Beyburn and Goocle, JJ., concur.