38 A.D. 564 | N.Y. App. Div. | 1899
This action was Drought to recover the sum of $970.66 which had been collected by Joshua M. Yan Cott, the defendants’ testator, under and pursuant to an agreement made in settlement of a controversy over the will of .George P. Gordon, the details of which are not material to this appeal. The receipt of the sum named was
“ In determining what has been decided,” says Mr. Freeman (1 Freem. Judg. [4th ed.] § 258), “ and what has, therefore, become a binding adjudication, the actual judgment of the court must be consulted, and, so far as it speaks, must be allowed to control.” If this rule is to control, then it is evident that the trial court erred in giving judgment to the plaintiff, for the judgment in the City Court recites that “ the court having instructed the jury that if they found that the defendant was entitled to the same amount as, or a greater amount than, that claimed by the. plaintiff in his complaint from the defendant, they must render a general verdict for the defendant; and the court having further instructed the jury that the defendant was not entitled to recover in this action from the plaintiff a sum greater
In the case of Campbell v. Consalus (40 Barb. 509) the defend-' ant executed a bond and mortgage for $1,200. This mortgage was assigned to A. L. Linn. Consalus commenced an action against Linn to cancel the mortgage, on the ground that it had been paid. The defendant denied payment and alleged that there was a large amount due. The case was sent to three referees, who took the evidence on the question of payment, They found that the mortgage had not been paid, but that the sum of $2,754.88 was due, and, as a matter of law, that the complaint should be dismissed, and it was dismissed, with costs.' Subsequently the mortgage came into the ownership of Campbell, who commenced an action for its fore
In the case of House v. Lockwood (137 N. Y. 259, 268) this case is quoted with approval - and» the same doctrine is asserted,, the facts being too complicated for convenient or concise statement. The court say: “ The general doctrine of res adjudicata is well understood. The rule is founded upon convenience and public policy;' Issues which .the parties have submitted- to a court of competent jurisdiction and had determined are put at rest, and are not to be reopened and relitigated, and their adjudication is conclusive in all subsequent controversies between them where the same matter comes again diréctly in question.” That is, in the case at bar, the ■plaintiff would not be permitted to question the judgment in so far as it determined that there was due to the defendants an amount equal to the sum claimed in the previous action by the plaintiff, for that was the exact question which was submitted to the jury- and determined. To attempt to say, however, that the defendants are estopped from asserting the balance of their claim as a' counterclaim in an action by thé plaintiff to recover moneys in their hands, is such a substantial denial of justice, and is so contrary to the true purposes of the doctrine of res adjudicata, that it can find no sanction in this court. “ But,” say the court in House v. Lockwood (supra), “ it has never been held that a judgment is an estoppel as to all -the litigated facts and all the evidence which the one party on the other may choose to introduce upon the trial of the action, however important such evidence may have been. The estoppel extends to the material facts which are in issue between the parties to the action, and to such as necessarily bear upon, control and are essential to the adjudication made.” If the same evidence is necessary to establish the. balance of the defendant’s counterclaim which was necessary to establish the lien in the former action, we fin'd no-authority which would deny the right to submit that evidence.. They do not bring into controversy the question previously litigated, but simply use'the same evidence to show that the claim -has be.en only partially liquidated. The question of how much was due to-.
“ The principle upon which judgments are held conclusive upon the parties,” says Herman’s Law of Estoppel (§ 39), “requires that the rule should apply only to that which was directly in issue, and not to everything which was incidentally brought into controversy during the trial.” This doctrine is recognized and approved in Shaw v. Broadbent (129 N. Y. 114); in Unglish v. Marvin (128 id. 380, 386), and in Nelson v. Brown (144 id. 384, 389).
In the case of Butler v. Wright (2 Wend. 369, 374) the plaintiff, asindorser of a promissory note, made certain payments on the same,, aggregating some $380. He brought an action in assumpsit against the defendant, the first indorser, and recovered. Subsequently he made other payments and brought a second action, and it was urged that the judgment in the former action upon the same claim was a bar to recovery. . The court say : “ The former recovery can be no-bar to the present action, although the evidence in both was in part the same. It was necessary in both suits, in order to entitle the plaintiff to recover, to shew that the defendant had been charged as-endorser by a regular demand of the maker, and notice to the defendant of non-payment. This evidence was indispensable to make out the fact that in judgment of law the money was paid for his use, for unless he was charged as endorser the payment was not for his use or benefit. But the recovery was not upon the note for it did not belong to the plaintiff, but was simply for the money paid by him; so in this action the plaintiff seeks to recover other money paid by him since the commencement of the first suit, and which, of course, could not have been embraced in the first judgment.
“ The case of Phillips v. Berick (16 Johns. R. 136) decides that the record of a former recovery, apparently for the same cause of action • as that which is the foundation of a subsequent suit, is prima facie evidence only that the demand had been once tried, and the plaintiff may repel it by shewing that it was a distinct demand, in relation to which no evidence had been offered in the former cause, and that it arose out of a distinct transaction.”
In Sage v. McAlpin (11 Cush. 165, 166) the conrt'say: “ The record of a judgment in a former suit is not always competent evidence on the trial of a subsequent action between .the same, parties, but is so only when the point in issue is; the same in both or when some question raised1, and to be passed upon in the last, has already arisen and been - determined in the first. ' * * * Did a reasonable time extend to and include the 22nd of January, was the only question which arose of was determined in the first, but in the. second the inquiry and point in issue- was, if it extended two days further and included also the twenty-fourth. It was a question of fact to be ascertained and determined in each case from all the evidence produced and all the circumstances.disclosed at the respective trials.”
. • So, in the case at bar, the question on the first trial was whether the plaintiff owed the defendant an amount equal to or exceeding the sum claimed by the plaintiff; the question now involved is whether the defendants are entitled to recover that portion of the claim in excess of the former recovery which could not be adjudicated in the first trial.
In Burlen v. Shannon (99 Mass. 200, 205) the court reviews the Massachusetts cases and quotes from the chief justice in the same' case (14 Gray,. 439) as follows: “ The parol evidence was rightly admitted to ascertain what questions were, in fact tried and submitted to the jury. This evidence showed that two such questions weré submitted; that if either of two things were true they would return a verdict for the plaintiff. A verdict on that direction for the plaintiff proved nothing more than that the jury found one of the propositions true, but without' finding which.” The court then adds: “The whole current of our own decisions fully supports the limitations of the doctrine' of estoppel which we now sanction and adopt.” To the same effect is the case of Duncan v. Bancroft (110 Mass. 267), though not so clearly stated. (See, also, Sewall v. Robbins, supra; Hyrnes v. Estey, 116 N. Y. 501, 509.) Reason, justice
A serious question in this case, however, is whether the defendant could split up his counterclaim or set off. A counterclaim, in most respects, is to be treated as an affirmative action on the part of the defendant. The rule is well settled that a party cannot split up an entire cause of action and maintain several actions, each for part of his demand. The recovery of one judgment bars his whole claim. There is some authority to the effect that the same rule applies to a counterclaim. It was so held by the late General Term of the first department in Inslee v. Hampton (11 Hun, 156), and also by the Superior Court of New York in De Wolf v. Crandall (2 J. & S. 14).. In O'Connor v. Varney (10 Gray, 231), Varney made a contract to erect a building. He sued for work done under the contract, to which O’Connor set up that the work was so imperfectly done that it would require a greater sum than the amount sued for to complete the contract. O’Connor recovered judgment in that action, and thereupon brought an action against Varney to recover damages for the non-performance of the contract. It was held that the judgment in the first action was a bar to the second ; that if the defendant in the" first action claimed greater damages than the amount for which the plaintiff sued, he should have stayed the first action and brought his cross-action. ' It was there said:. “ He cannot use the. same defence, first as a shield, and then as a sword.” In the American and English Encyclopaedia of Law, subject Res Judicata (Vol. 21, p. 224), it is said: “ A set-off cannot be split up so as to have a portion adjudicated in tire first suit and a. subsequent action brought for the" remainder.” But the authorities cited in the work in support •of its "text seem hardly to go to this extent. In all the cases cited, however, the defendant might have had full relief by seeking a judgment in his own favor; and the question still remains whether the rule is applicable to cases where the defendant necessarily is confined in the use of his set-off or counterclaim to a defeat of the plaintiff’s demand, and is not permitted to obtain an affirmative judgment.^. From an early period in the legislation of our State assignments of dioses in action, have been permitted, and the assignee .authorized to sue in his own name; but such assignments have been made subjéct to any counterclaim or defense existing against the
- Judgment reversed and new trial granted, costs, to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event»