after stating the case, delivered the opinion of the court.
It is unnecessary to review the testimony as to the personal negotiations between the parties after the defendant’s arrival in Denver, оr to attempt to decide which of them most accurately recollects the transactions. It' is enough to say that there is a serious сontradiction between them, and perhaps it Avould be difficult to determine the real facts. The plaintiff insists, and that is the burden of his contention, thаt the judgment in the law action is conclusive as to the fact of defendant’s assent to the contract as executed by his agent, while the defendant claims that it settles only that this plaintiff, acting under the advice of counsel in placing the papers on record, Avas guilty of no Avilful or malicious Avrong, and, therefore, not liable in damages. The same learned judge who presided at the trial of the law action decided this case, and we have before us his charge to the jury in that to compare Avith his opinion in this case.
It is true that in his charge the judge said to the jury, “ the chief question for your consideration,' therefore, is whether the plaintiff, by his conduct and by Avhat he did Avhen he came to knoiv what had beеn done in his name, ratified and confirmed this agreement; ” but he also charged that there
Obviously, the jury, under thеse instructions, were at liberty to find for the defendant, if they thought that in fact the plaintiff had suffered no damages by the filing for record of the letter аnd agreement. "When the judge, speaking of ratification, uses such expressions as “ the chief question ” and “ the question is mainly,” he indicates the еxistence of another though subordinate question. And when he charges that punitive damages cannot be recovered, that there is no direct evidence of any damage and that the jury may award to plaintiff, if they find a ratification, “ such damages as he may be entitled to,” he рlainly authorizes a verdict against the plaintiff for want of “damage.” .It may be said that if a wrong was done the plaintiff was, technically, entitled to, at least, nominal damages, but no instruction to that effect was given. The charge was, ratification or no ratification, damage or nо damage. That the learned judge was of opinion that the verdict of the jury was only a finding that the plaintiff had suffered no damages, is probable from his opinion in this case, for he says, in reference to his instructions:
“ In other words, in a suit, for clouding the title, it must
“There can be no reasоn to doubt the correctness of the position assumed in the trial of that action, and that it was well decided by the jury.”
Now it is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment.
“ It is' undoubtedly settled law that a judgment of a cоurt of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same рarties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, as,' for examplе, if it appear that several distinct matters may have been litigated, upon one of inore of which the judgment may have passed, without indiсating which of them was thus litigated, and upon which the judgment was rendered, the whole subject-matter of the action will be at large, and open tо a new' contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.”
Russell
v. Place,
There is in this case no extrinsic testimony tending to show upon what the verdict of the jury was based. We have simply the record of the former judgment, including therein the testimony and the charge of the court from which to determine that fact, and in the light of the charge it is obviously .a matter of doubt whether the jury found thаt the agreement made by the agent was ratified by the principal,
This practically disposes of the case, for the testimony lеaves it doubtful whether there was any contract between the parties. Obviously the agreement signed by Henry as agent was not within the scope of the authority given. Authority to sell for $5000, one-half cash, is not satisfied by an agreement to sell for $5000, $200 cash, $2300 in three weeks, and the balance оn time. Further, the agreement was not in fact for $5000, but only $4950, the agent calling it $5000, and claiming only $100 as his commission instead of $150.. Whether the defendant afterwаrds ratified his agent’s action is a matter in respect to which the testimony is, as we have stated, conflicting. And where the existence of a contract is a matter of doubt equity will not, as a rule, decree specific performance, especially in a case like this where, as appears, the property "was rapidly rising in value.
We see no error in the conclusions of the Circuit Court, and its decree is, therefore,
Affirmed.