14 S.D. 181 | S.D. | 1900
This is an action to recover the amount of a promissory note purporting to have been executed by one Wood, and payable to the order of the defendant, and transferred to the plaintiff by an agent of the defendant. Judgment was directed for the defendant, and plaintiff appeals.
The plaintiff alleges in his complaint “that on or about March 30, 1896, defendant, by his agent, Robert McClosky, indorsed to this • plaintiff one certain promissory note, purporting to have been made by one Sylvester A. Wood, and payable to the order of defendant-said note being for the sum of $75, bearing date September 7, 1895,
It is contended by the appellant in the case at bar that the agency of Robert McClosky in transferring this note to the plaintiff was not in issue in the former action, as the issues in that case were as to whether or not Robert McClosky purchased the plow for himself or as the agent of the defendant, and whether or not the note was received in payment of the plow, or as collateral security, and that therefore the judgment in that action does not constitute a bar to this action. The appellant further contends that, in order that a judgment should constitute an estoppel, there must be identity of the subject matter and identity of causes of action, and that both are absent in this case; that an adjudication of fact, other than 3Ri issuable fact, cannot estop in another action; and that the issuable facts are those only put in issue by the pleadings. It is further contended on the part of the appellant that neither the subject matter nor the thing sued for was the same in the two actions, nor is there any identity of issues; that the subject matter of the first action was the contract by respondent to pay appellant for the plow, and that the thing sued for was the consideration so agreed to be paid, while the subject matter in the
It is conceded that the parties are the same, and that they occupy the same relation, and sue and defend in the same capacity, in the two actions; but as to the subject matter and issues involved in the two actions, as will be observed, the parties are not agreed. Naturally the principal question involved in the foimer action was as to whether or not Robert McClosky, the father, was authorized by the defendant to purchase the plow as his agent; but there was involved, also, the question as to whether or not Robert McClosky was authorized to transfer the note belonging to his son, either in payment for the plow, or as collateral security therefor. If the father was not authorized to purchase the plow for his son, it would seem to necessarily follow that he was not authorized to transfer the promis