| Mo. Ct. App. | Mar 4, 1889
This is an action on a promissory note of five hundred dollars, being one of three, each for the same amount; given by defendant in payment for a horse and jack purchased of plaintiff. The two notes first falling due had been theretofore sued upon, and a defense to them made under an answer, containing three counts, setting up, first, a breach of warranty and damage by reason thereof of fifteen hundred dollars, and prayer that so much thereof as will pay plaintiff’s claim be recouped and for judgment over for the excess. Second, that in consequence of false and fraudulent representations defendant purchased the animals and spent large sums of money in attempting to cure them whereby he was damaged fifteen hundred dollars— same prayer as in first count. Third, a total failure of consideration.
Instructions were given in that suit covering the issues made by the first and third counts and the verdict of the jury was “we the jury find for the defendant.” The answer in the present case, sets up first, failure of consideration and then pleads the former suit and judgment in bar of this, setting out the pleadings, instructions and verdict in that case. Plaintiff, by replication, admitted the truth of the answer as to the former suit and judgment, and then proceeded by way of further reply that defendants were “estopped and debarred” by such former suit from setting up in this case the defense of failure of consideration. The cause was submitted without evidence for judgment on the pleadings, though instructions or declarations were given for each party. The court rendered judgment for plaintiff and defendant appeals.
It is a rule in res adjudicata, that if a claim is specially embraced in the pleadings, the presumption is that it was presented at the trial and considered in the rendition of the judgment. Freem. Judg., sec. 272. Or that where matters could have been proved in the former action, the presumption is that they were proved, though such presumption may be rebutted. Lightfoot v. Wilmot, 23 Mo. App. 5; Hickerson v. City of Mexico, 58 Mo. 61.
Under these rules, the presumption will obtain in this case that the question of total failure of consideration, of warranty and damages by reason of the breach of the warranty, if any was made, were each considered by the jury in rendering their verdict for defendants in the former cause. All these issues were presented by the pleadings and all were the subject of instractions. So, if all were considered, we must ascertain from the record what was the result of this consideration, if it can be clearly done.
Our conclusion is, that it cannot be said what was the result of that consideration, or upon which of the issues submitted, the jury made their verdict. Testimony should have been introduced relieving this dilemma. When a number of issues are presented, the finding in any one of which, will warrant the verdict and'judgment, it is competent to show that the finding
But notwithstanding that neither party was entitled to judgment by reason of the plea res adjudicata, the trial should have proceeded under the first count of defendant’s answer which sets up, what was assumed by the parties, to be a good plea of total failure of consideration. For this reason the judgment will be reversed.
By way of suggestion which may serve to obviate complications at another trial, we would say that, if defendant intends to rely upon total failure of consideration, he should amend his answer so that it may show a total failure of consideration as expressed by the majority opinion in this case when here before (27 Mo. App. 251" court="Mo. Ct. App." date_filed="1887-02-19" href="https://app.midpage.ai/document/brown-v-weldon-6615556?utm_source=webapp" opinion_id="6615556">27 Mo. App. 251), and the case afterwards arising of Hayner v. Churchill, 29 Mo. App. 677, concurred in by the whole court. The judgment is reversed and the cause remanded.