5 Pa. 305 | Pa. | 1847
Though the pleadings in this case are very defective in form and substance, and stop short of the issue the parties intended to present as the principal one, the reoord sufficiently shows that the sole question agitated in the court below, was, whether the verdict and judgment rendered against the plaintiff in the action brought by him against the defendant, to November Term, 1840, and pleaded in bar in the present suit, estops the plaintiff for ever of his action for the alleged breach of the covenants which give rise to this litigation. The court below being of opinion that such was its legal effect, declined to hear evidence in support of the defendant’s second plea of “covenants performed,” instructed the jury that the former judgment was conclusive against the plaintiff’s right to recover in this suit, and accordingly directed them to find a verdict for the defendant. This instruction is here assigned for error, and it presents a naked question of law free from any embarrassment which might arise from conflicting facts. The maxim which forbids a second judicial agitation of rem judicatam by the same parties or their privies, is one of essential consequence in its application, and therefore to be rigidly adhered to within the bounds that have been assigned to it. But we think it has never been carried to the verge to which the learned judge before whom the cause was tried has pushed it in the present instance. On the contrary, it has been held an acknowledged principle, that when it can be gathered from the record, the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to the second suit: for, as was observed by a very eminent jurist, in such case the argument that the causes of action were the same is virtually negatived. (Per Story, J., in Hughes v. Blake, 1 Mason, 519.) This exception to the maxim invoked by the defendant in error, if indeed it can strictly be called an exception, since it assumes the character of a general rule, is almost, if not altogether, co-existent with the rule itself. Thus, in a very early ease, it was held that where the judgment was rendered on the ground of the insufficiency of the declaration, the defendant could not use it as a bar to a second action for the same cause, though by mistake or design the judgment was rendered with a nil capiat instead of an eat sine die ; Lepping v. Kedgewin, 1 Mod. R. 207;
The present case cannot in principle be distinguished from those I have cited, but it resembles, in its essential features, more particularly the case last referred to. Here, as there, the action was prematurely brought, and for the same reason; namely, that the plaintiff had not done all incumbent on him to do, to put himself in a position legally to call on the defendant to perform his contract. The first action was brought upon the same articles of agreement
The distinction which seems to be established with us is ex-, plained by the subsequent case of Sterner v. Grower, 3 Watts & Serg. 136, to be between those eases in which the cause of action appears to have been entire, and those in which it appears to have consisted of parts easily divisible. In the latter, it is said, the record, if it do not affirmatively show that the jury passed on the controverted matter, will not conclude the plaintiff in a subsequent action. Even this distinction is disregarded in New York, (Snider v. Croy, 2 Johns. 227; Phillips v. Berick, 16 Johns. 136,) and perhaps in England, where, it would seem, parol evidence will in-all cases be admitted to show that the merits of the controversy sought
It has already been shown, that in the present instance we are not called upon to travel out of the record to show that this' plaintiff has not enjoyed the benefit of a trial on the merits of his claim. An error was therefore committed by the court below, in taking the case out of the hands of the jury, by an authoritative direction to find a verdict for the defendant, for which the judgment must be reversed.
What has been said covers all the errors assigned, which are, in fact, reducible to the single mistake we have been considering.
Judgment reversed, and a venire de novo awarded.