13 Barb. 57 | N.Y. Sup. Ct. | 1852
This-cause has been once before tried, and a verdict rendered in favor of the plaintiff. A new trial was granted by the supreme court, and the decision of that court affirmed by the court of appeals. It has therefore been decided, upon the case made on the former trial, by the court of last resort, that the plaintiff was not entitled to recover. This decision was upon the merits. Unless therefore the case has been made to vary by some new evidence, giving to it a new feature, we should not in my judgment be authorized, in the face of the decision of the supreme court and court of appeals, to give a judgment for the plaintiff, although we might be unable to determine that the members of the latter court had agreed upon any one ground for the judgment given in the case. The decision must be conclusive in the particular case in which it is pronounced. It is the law of the case. Upon this ground I am of the opinion that the judgment should be reversed and a new trial granted, unless the special contract, between the plaintiff and Williams & Crane, in behalf of the owners of the salt, which was given in evidence upon the last trial, has introduced an entire new element into the action, and established a different case on the part of the plaintiff. I am of the opinion, however, although I do not deem it important to determine the Question, that two points have been decided by the supreme court and by the court of appeals, viz.: 1. That Richmond, Williams & Crane were proper parties, and could, as general owners, maintain an action against the defendants upon their liability as common carriers to deliver the salt at Lower Sandusky; and 2. That the judgment in the action brought by them was conclusive upon the plaintiff in this action, and that the effect of the judgment could not be limited by parol evidence of the grounds upon which the ,verdict was pronounced. In the supreme court all the judges concur as to the first proposition, and Chief. Justice Beardsley and Judge McKissock agreed upon the last proposition; Judge
If it be conceded, therefore, that upon the contract made by the plaintiff with the carrier, for the delivery of the salt to the owners at Lower Sandusky, the former could have maintained
W. F. Allen, Hubbard and Pratt, Justices.]
The judgment must be reversed, and a new trial granted; costs to abide the event.
Hubbard, J. concurred.
Pratt, J. dissented.
Judgment reversed.