151 Mass. 390 | Mass. | 1890
This is an action of contract. We infer that one of the principal items sought to be recovered was for work and labor, and the question before us can be explained and disposed of by considering that item alone. The defendant put in the record of an audita querela between the same parties, and asked the judge to rule that the plaintiff’s claim was res judicata. The judge refused to do so, and left it to the jury
In the audita querela, the present plaintiff alleged that he did certain work, and gave a certain note to the defendant in full satisfaction of an execution held by the defendant, and also alleged that the judgment was for an excessive sum, and sought to have the judgment reduced, and the defendant ordered to pay him the balance due. The defendant denied that the work was done in satisfaction of the judgment, and alleged that he paid for it by surrendering to the plaintiff some notes made by the plaintiff. The judgment was, “that the plaintiff has no right to maintain his said action,” and that the defendant recover costs. The evidence offered by the plaintiff in the present case is stated to have been “coextensive with his allegations” in the audita querela.
No question is raised by the bill of exceptions touching the conclusiveness of the judgment sought to be impeached in the audita querela. The only question is concerning the effect of the judgment rendered upon the audita querela. The conclusiveness of that judgment, assuming in favor of the defendant that it was upon the merits, is with reference to the matters alleged by the plaintiff to have satisfied the execution. We presume that the defendant relied upon it as establishing that the plaintiff was not entitled to recover for the work alleged to have been done in satisfaction of the execution. As the defendant admitted that the plaintiff did the work, if the judgment did establish what the defendant said it did, it must have been rendered upon the ground that the work was paid for as the defendant alleged.
But the judgment does not necessarily import that the work was paid for in any way. It is true, that, if it was paid for as the defendant alleged, the conclusion which we assume the record to establish would follow, that the work was not done in satisfaction of the execution. But the same conclusion would follow if the work was not paid for at all, but was done under an executory contract upon which the plaintiff had a right of action. The record only shows that the execution had not been
Exceptions overruled.