14 Or. 567 | Or. | 1887
The amended complain therein contains four separate and distinct causes of action. The first count in the complaint alleges, in substance, that in the year 1880, at Dalles City, the defendant received into, his possession fifteen segment window sash, of the value of $60.00, and 3,500 feet of roofing lumber, of the value of $68.50; all said sash and lum
% That in the year 1880, at Dalles City, in said county, a certain large and valuable lot of building material owned by the defendant and consisting of various kinds of lumber, accidentally fell into the Columbia river, and was about to be carried away by the water of said river; and the defendant being absent, the plaintiff, in order to save said lumber from being washed away and lost, at his own expense furnished help and did service in and about saving the same from being lost; and that the service so performed and procured by the plaintiff was of the reasonable value of $20 ; and the defendant received all of the advantage and benefit of said labor and service, and has over since neglected and refused, and does still neglect and refuse, to pay plaintiff any sum whatever therefor.
8. That plaintiff furnished the defendant .a door-lock, and did and performed labor and service in putting the same upon a door, in the year 1881, at the special instance and request of the defendant; and that said lock, labor and service were of the reasonable value of $3.50; which sum defendant promised to pay the plaintiff, but has neglected ever since to pay the same or any part thereof.
4. Further complaining, the plaintiff alleges that heretofore, to wit, on the 16th day of October, 1880, at Dalles' City, the plaintiff and the defendant entered into a certain contract in writing, whereby it was agreed between them, amongst other things, that the plaintiff should rebuild for the defendant a certain building on the north side of First or Main street in said Dalles City, which had previously fallen down; a copy of which written agreement is hereto annexed, and marked “ Exhibit A.” That thereafter the plaintiff was at all times ready and willing to perform the said agreement in all respects, but the defendant refused to submit the disputes there referred to, to the said arbitrators, or to arbitrate the same, and refused
The defendant’s answer denied all the material allegations of the amended complaint, and then alleged a former adjudication as follows : “ And for a further and separate defense to the demands of the plaintiff, the defendant further alleges that on the 28th day of July, 1881, he commenced an action in the circuit court of the state of Oregon for the county of Wasco against the plaintiff (Hugh Glenn), to recover damages for the non-performance of a contract between the parties herein, dated April 8, 1880; that the defendant therein (the plaintiff herein), in his answer in said action, among other things, claimed the sum of $3,560 against and from the plaintiff in said action for money expended in and about the construction of said building, and the purchase and procuring materials therefor.
And also claimed damages in his said answer against the plaintiff therein, for a breach of the contract between said parties, dated the 16th day of October, 1881, and which is set forth in the fourth paragraph of the complaint, and attached to the complaint, marked ‘ Exhibit A ’ ; that the said action was finally adjudged and determined by this court at the March term, 1888, of said court—to wit, on the 6th day of April, 1883—wherein the plaintiff in said action recovered a judgment against the defendant therein (the plaintiff herein) for
The reply denied the new matter contained in the answer. The trial resulted in a verdict and judgment in favor of the plaintiff for $450, from which judgment this appeal is taken. The appellant’s assignments of error are as follows:
I. The circuit court erred in ruling that the defendant should not be permitted to introduce in evidence the record and judgment roll in the case of O. S. Savage v. Hugh Glenn, commenced, tried and determined in the circuit court of the state of Oregon for Wasco County, and in which a judgment was rendered on the 6th day of April, 1883, a copy of which record and judgment is attached to the bill of exceptions and mai-ked “ A,” said judgment roll having been offered in evidence for the following purposes:
First. To show that the cause of action, if any there were,' in favor of Hugh Glenn (the pl’ff) against O. S. Savage (the def’t), arising on or out of any breach of the contract dated Oct. 16,. 1880, was set forth and pleaded in the answer of Hugh Glenn, and adjudicated and determined in said cause, and is now res adjudícala.
Second. To show that it was adjudged and determined in said action of O. S. Savage v. Hugh Glenn, that the defendant had no cause of action or counter claim against the said O. S. Savage, arising out of the agreement dated Oct. 16,1880.
II. The said circuit court erred in ruling that the defendant should not be permitted to introduce in evidence the said record and judgment roll in the case of O. S. Savage v. Hugh Glenn, attached to the bill of exceptions and marked “ A,” for the following purpose:
To show that the defendant therein (the plaintiff herein) had set forth in his answer as follows:
III. The said circuit court erred in ruling that the defendant O. S. Savage should not be permitted to answer the following question asked him by his attorney while on the witness stand : “ Mr. Savage, about these sash you have testified to, you have already testified as to the value and number of them; state whether or not Mr. Glenn, in the former trials, claimed damages for making fifteen segment sash—in both of the former trials.”
IY. The court erred in its charge to the jury, in giving the following instructions :
“ In order to entitle the plaintiff to recover of the defendant for the lock and labor of placing the same on the door, you must be satisfied from the evidence that the plaintiff furnished the said lock and labor at the request of defendant, or of some one duly authorized on his behalf. If the labor was done and the lock furnished by request of defendant, or some one in his behalf duly authorized to contract therefor, the plaintiff should be allowed what his said lock and labor were reasonably worth; otherwise, he should not be allowed anything on that claim.”
Y. The court erred in giving the following instruction to the ]'U1T :
“ If, at the time the building fell, the plaintiff was in charge and looking after and caring for the building for the defendant as well as for himself, and after the building fell he took measures to protect the defendant’s rights and interests by saving lumber used in the construction of the said building, and prevented it from floating away, he should be allowed such sum as his work and labor, and that furnished by him, were reasonably worth. (Such lumber only as was used in the construction of the building and attached thereto belonged to Savage, and any lumber or material which may have been upon the
VI. The court erred in giving the following instructions to the jury:
“ But if Glenn was prevented from erecting said building by reason of Savage refusing to allow him to proceed with the erection thereof, then Glenn would be entitled to recover such damages as he has sustained by reason thereof; and the measure of damages in the case would be the difference between the contract price, which was $6,000, and the amount it would have cost plaintiff to have erected the building.”
I will notice these several assignments of error in their order. The first assignment relates to the refusal of the court below to allow the judgment in the case of Savage v. Glenn, referred to in the answer, to be introduced in evidence, for the purpose of proving that some of the matters sued for in the action had been adjudicated in the former action between the same parties. On the argument, it was conceded by counsel for the respondent that if the record offered in evidence showed that the matter arising out of said contract of October 16, 1880, was in fact adjudicated in the former action, that adjudication is a complete defense to that part of the plaintiff’s demand in this action, whether the former adjudication was favorable to one party or the other. An examination of Glenn’s answer in the former case discloses the fact that he claimed damages in that action by way of recoupment or counter-claim, and that the foundation of such claim was the contract of October 16, 1880. It is the same contract upon which the plaintiff’s fourth cause of action is predicated, and he also sought by counterclaim to recover for the sash and lumber mentioned in his first count in the present action. Issue was taken on these matters by the reply, and, so far as appears from the record, they were fully tried and determined. On the first trial, plaintiff had a judgment for $2,050; on the second, for $300. The answer in that action admits that
There is no dispute as to the principle of law, that an issue once determined in a court of competent jurisdiction cannot be again litigated, and may be opposed as an effectual bar to any further litigation of the same matter by parties and privies. The contention is as to its correct application. A very brief examination of some of the authorities will illustrate the force and extent of the principle, as well as the manner in which it has been applied.
In Caperton v. Schmidt, 26 Cal. 479, it is said: “It will be seen from the rule as above stated, that the matter adjudicated, to become as a plea a bar, or as evidence conclusive, must have been directly in issue, and not merely collaterally litigated. It must be a fact immediately found according to the pleadings—not that on which the verdict was merely based— a fact in issue as distinct from a fact in controversy. (Porter v. Baker, 19 N. H. 166: McDonald v. B. R. W. & M.
So in County of Keokuk v. Alexander, 21 Iowa, 377, it is said: “ If, as a matter of fact, these items of account were specially identified and embraced in the causes of action of a former suit, and for some reason, although known to exist, were overlooked and not considered, they cannot in law be the ground of a second action.”
So it is said in Garwood v. Garwood, 29 Cal. 514 : “ The judgment of a court having jurisdiction directly upon the point in controversy is, as a plea a bar, and as evidence competent and conclusive, between the same parties and their privies. A fact or matter at issue is that upon which the plaintff proceeds by his action, and which the defendant controverts in his pleadings.”.
So also in Brockway v. Kinney, 2 Johns, 210, it is said: “ It was not shown that the plaintiff abandoned the charge for burning the lime before or at the trial. The charge, of course, went to the jury on the first trial, and took its chance with them. If they did not allow it for want of sufficient proof, or for any other cause, it was the plaintiff’s misfortune. The verdict must be considered as conclusive between the same parties in regard to the same matter, otherwise it would in effect be permitting one jury to review the proceedings of another. If the plaintiff at the first trial had not chosen to hazard a verdict, he should have entered a nolle prosequi on the charge, or consented to a nonsuit.”
So in Barrett v. Failing, 8 Or. 152, ‘the rule is thus stated: “ The judgment of a court of competent jurisdiction is not only conclusive on all questions actually and formally litigated, but as to all questions within the issue, whether formally litigated or not.”
And the same case holds that it is not competent to prove by parol evidence that an issue made by the pleadings in the former suit was withdrawn from the consideration of a referee
So in Green v. Clark, 5 Denio, 497, it is said : “ A general verdict of not guilty imports that the verdict was on the merits ; and parol evidence cannot be received to explain, qualify, or contradict what is thus' shown by the record. That imports verity, and is conclusive evidence that the verdict in this case was on the merits.”
Thus far, it seems clear that the judgment pleaded is a bar; but respondent’s counsel insist that said judgment was not upon the merits as to the matter relied upon in this action; that the sa.me was not considered; and they cite Savage v. Glenn, 10 Or. 440, which is the same case in which the judgment was afterwards rendered now relied upon as a bar. It is there said : “ The case comes up on exceptions to certain instructions given to the jury, and on refusal to give certain instructions asked by appellant. The court instructed the jury in effect that the agreement of October 16th, 1880, could not be considered by them in estimating the damages. This view of that agreement was correct.” And why could it not be considered ? It was properly pleaded, and between the same parties, and the reason it could not be considered is not stated ; but it must have been upon the ground that the contract remained wholly executory, that neither party had done anything under it, and that it had ceased to be binding between them. But upon whatever ground this decision is placed, its effect was to conclude the parties. It decided that Glenn was not entitled to recover damages against Savage for the breaches of that agreement. If the jury had no right to consider that agreement in estimating damages in that case, it could never be.,considered in any case; and the decision of the court in that case, refusing to allow the jury to consider it in assessing damages, followed by a final judgment, and the pleadings remaining unchanged, in my opinion operated as a final and conclusive bar between the same parties on the same subject. And such seems to have been the ruling of the Supreme Court of Maryland, in Beall v. Pearre, Admin'r, 12 Md. 550. It is there said : “ Under
Exceptions were also taken to the ruling of the court in giving to the jury an instruction touching defendant’s liability for the lock alleged to have been furnished. The evidence on this subject was to the effect that plaintiff put a lock on the door of the “ Inland Empire ” building at the request of Judge Whitten, who was acting as attorney for defendant; that a quantity of printing material was held in the building on an attachment issued in an action which defendant Savage had commenced, in which case Judge Whitten acted as his attorney, and that Judge Whitten requested this plaintiff to put the lock on the door. The lock was worth $2.50, and the labor in putting it on $1. The amount was charged to Whitten and payment demanded of him, but he told the plaintiff that Savage would pay the bill. Based on this evidence, the court instructed the jury as follows: “To entitle the plaintiff to recover (for this item) they must be satisfied from the evidence that the plaintiff furnished the lock at the request of the defendant or of some one duly authorized on his behalf.” This instruction is open to several objections. There was no evidence before the jury tending to prove that the lock was furnished at defendant’s request, and this part of the charge was, therefore, abstract and misleading. (Breon v. Henkle, ante, p. 494.) So the other part of the charge, that the lock must have been furnished at the request of some one duly authorized on his, defendant’s be
The fifth assignment of error is that the coui-t instructed the jury that when the building fell down, if Glenn saved the lumber used in the construction of this building from floating away, then he was entitled to recover from Savage the reasonable value of his services, and for the services of his workmen employed in saving the lumber.
The facts enumerated in this instruction could not create a legal liability on the part of Savage. They may have been meritorious and probably beneficial to Savage, but this was not enough. To make him liable, he must either have requested the performance of the service, or, after he knew of the service, must have promised to pay for it. The great and leading rule of law is, to deem an act done for the benefit of another without his request as a voluntary act of courtesy, for which no action can be sustained. The world abounds with acts of this kind done upon no request; but'would more abound with ruinous litigation, and the overthrow of personal rights and civil freedom, if the law was otherwise. (Force v. Haines, 17 N. J. L. 385.) The law will never permit a friendly act, or such as was intended to be an act of kindness or benevolence, to be afterwards converted into a pecuniary demand ; it would be doing violence to some of the kindest and best effusions of the
So in Bartholomew v. Jackson, 20 Johns. 29, it is said: “ The plaintiff performed the service without the privity or request of the defendant; and there was, in fact, no promise express or implied. If a man humanely bestows his labor, and even risks his life, in voluntarily aiding to preserve his neighbor’s house from destruction by fire, the law considers the service rendered as gratuitous, and it therefore forms no ground of action.” Numerous other authorities are to the same effect. (Rens Glass Factory v. Reid, 5 Cow. 587; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error. It follows that the judgment appealed from must be reversed, and the cause remanded for a new trial.
