Carmody v. Simpson-Sullivan Co.
44 App. D.C. 39
D.C. Cir.
1915
Check Treatment
Mr. Justice Robb

delivered the opinion of the Court:

It is familiar doctrine that a right, question, or fact distinctly put in issue and determined by a court of competent jurisdiction as a ground of recovery cannot be questioned in a subsequent suit between the same parties or their privies, and that even if the second suit is for a different cause of action the right, question, or fact once so determined, as between the same parties or their privies, must be taken as conclusively established while the judgment in the first suit stands. Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; *43Nalle v. Oyster, 230 U. S. 165, 57 L. ed. 1439, 33 Sup. Ct. Rep. 1043. And under the rule obtaining in the Federal courts a party may take advantage of a prior adjudication either by special plea or by offering the record of that adjudication in evidence. Southern P. R. Co. v. United States, 168 U. S. 1, 59, 42 L. ed. 355, 380, 18 Sup. Ct. Rep. 18. But there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in an action between the same parties upon a different claim or demand. In the former, a judgment rendered upon the merits constitutes an absolute bar to a subsequent action. “But where the second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Cromwell v. Sac County, 94 U. S. 351, 353, 24 L. ed. 195, 198. Thus in Washington, A. & G. Steam Packet Co. v. Sickles, 24 How. 333, 16 L. ed. 650, the action was brought upon a special parol contract for the use of Sickles’ patented device for saving fuel in the working of steam engines, which device was to be attached to the engine of the defendants’ boat, payments therefor to be made from time to time when demanded. To ascertain the saving of fuel an experiment was to be made in a certain manner, and the result taken as a rate of saving during the life of the contract. The declaration averred that the experiment had been made and that the device had been used until the commencement of the suit. In a prior action against the same defendant for an instalment due, where the declaration set forth the same contract in two counts, the first of which was the same as in the second action and also the common counts, a verdict and judgment was obtained. In the second suit it was insisted that the defendant was estopped by the verdict and judgment produced from proving that there was no such contract as that declared upon, or that no saving of fuel had been obtained, or that the experiment had not been made pursuant to the con*44tract, or that the verdict was rendered upon all the issues, and not upon the first count specially. The court said: “The record produced by the plaintiffs showed that the first suit was brought apparently upon the same contract as the second, and tbat the existence and validity of that contract might have been litigated. But the verdict might have been- rendered upon the entire declaration, and without special reference to the first count. * * * It may have been that there was no contest in reference to the fairness of the experiment, or to its sufficiency to, ascertain the premium to be paid for the use of the machine at the first trial, or it may have been that the plaintiffs abandoned their special counts and recovered their verdict upon the general counts.”

The record offered in the present case consisted of a declaration upon a promissory note for $400, payable to Charles W. Simpson and signed by the appellant. To this declaration the defendant, appellee here, pleaded the general issue, and the verdict and judgment was for him. The record does not purport to contain the evidence which was before the jury, nor was there any offer to prove the question or questions submitted and passed upon. The record does contain an affidavit of merit by the plaintiff in the action and an- affidavit of defense, but these form no part of the pleadings and serve no useful purpose here. Booth v. Arnold, 27 App. D. C. 287. It therefore is impossible to determine, from the record as offered, what points were in issue and determined by the jury. For this reason the court properly declined to receive the record, even as against the defendant Simpson, for if it was evidence at all it was conclusive as to the points in issue and detexunined. Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Aurora v. West, 7 Wall. 82, 19 L. ed. 42; Richardson v. Boston, 19 How. 263, 15 L. ed. 639.

The jury could not help understanding from what took place that Simpson, in stating that appellant still owed him $400, ignored the finding of the jury in the first case; in other words, that he was unreconciled.,to the judgment in that case. The court characterized his statement as a mistake of fact in the *45presence of the jury, which was quite sufficient inasmuch as that was not in issue in the case on trial.

The judgment is affirmed, with costs. Affirmed.

A petition by the appellant for a rehearing was denied October 9, 1915.