17 Or. 381 | Or. | 1889
For his first cause of action, the plaintiff alleges that on the fourth day of March, 1887, plaintiff
The defendants demurred to the complaint upon several grounds, which being overruled, they filed their answer. By their answer the defendants deny that they have sold fifty-four thousand feet, or any greater amount than forty-six thousand feet, of the timber delivered to them by the plaintiff under said contract since the commencement of the former action mentioned in the complaint, and they deny that any other or greater sum than $126.50 is due now or ever was due the plaintiff thereon.
Each of the other causes of action are specifically denied. The answer then alleges, by way of counterclaim to the causes of action stated in the complaint, that over six thousand feet of logs delivered to them by plaintiff under the written contract set out in the complaint were not of good quality of fir, such as the railroad company would accept for ties, and were not of good quality fir, such as were fit or suitable for railroad ties, but were unsound and decayed, and that the lumber manufactured therefrom was unsalable at the ordinary rate; but that the defendants were compelled to sell the whole six thousand feet for the sum of twenty dollars, which was the highest price that could be procured for the same, and all it was reasonably worth. That the market value of good merchantable ties was eight dollars per thousand feet, and that said railroad company would have accepted said six thousand feet of ties, and paid that sum therefor, had the same been of suitable material. That said six thousand feet of lumber are contained in said forty-six thousand feet of lumber sold since the commencement of said previous action, and that by reason of said loss defendants have been damaged in the sum of twenty-eight dollars.
The plaintiff, replying to the defendants’ first counterclaim, pleads, by way of release and estoppel,, that the defendant ought not to be admitted to allege that they had been damaged in the sum of twenty-eight dollars by pliain
The notice of appeal contains numerous assignments of error, ambngst which are error of the court in admitting the judgment roll No. 13,496 in the former action No. 7,862, between the same parties, as evidence before the jury, to estop the defendants from denying or disproving that the quantity of lumber on hand and unsold from the saw-logs delivered by plaintiff under the written contract
The judgment roll in the former action was offered in evidence by the plaintiff. One of the allegations in the defendants’ answer in the former action which is claimed to work an estoppel in this is as follows: “They admit that on March 4, 1887, they entered into the written contract with the plaintiff mentioned in the seventh cause of action in the complaint; and admit they were to pay the plaintiff $2.75 per thousand feet for furnishing the timber for, and cutting and hauling saw-logs to, their said steam saw-mill; but they allege that in and by said written contract it was expressly stipulated and agreed between the plaintiff and defendants that no sum of money for or on account of furnishing said saw-logs at their said-steam saw-mill, under said written contract as aforesaid, should become due or payable to the plaintiff from the defendants until after they had sold the lumber or timber manufactured from said saw-logs, and collected the price thereof, and only as such sales should be made and the price received by them, and in the proportion to the amount thereof. And the defendants allege that the plaintiff delivered to them under said contract 165,000 feet of saw-logs and no more, but that only 109,930 feet of the lumber and timber manufactured by them from said saw-logs'have been sold and the price thereof received
1. The first question demanding attention is, What was the effect of the judgment rendered in the previous litigation between the parties? Having alleged in the former suit that they had on hand fifty-four thousand feet of lumber which remained unsold, are they thereby precluded from now alleging that the amount in fact was only forty-six thousand feet ? To support their contention, counsel for the respective parties have cited many authorities, which have been examined by the court; but they do not seem decisive of the question presented. All concede that when a fact has been once litigated in a court of competent jurisdiction, the judgment rendered therein forever estops the parties and their privies from again litigating the same fact. The rule is undisputed, but the difficulty lies in its application. The matter now relied upon was pleaded in the former action for the purpose of reducing the plaintiff’s recovery in that action. For that purpose it was put in issue and tried. It must be intended that the verdict of the jury covered all the issues made in that action. The quantity of lumber which the defendants had on hand, and which had been sawed from timber delivered by the plaintiff under the written contract, was one of the issues, and I am unable to perceive why the judgment rendered does not conclude that ques
In Hanna v. Read, supra, the principle is thus stated: “Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact- or question is again put in issue on a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same -in both suits or not.” Counsel for appellant, in effect, insist that there can be no estoppel in this case, for the reason that the answer in the former action presented a number of separate defenses, and the complaint therein contained a number of causes of action, so that the record lacks that degree of certainty necessary to create an estoppel.
In support of this objection they cite Russell v. Pace, 94 U. S. 606. But the principle of that case can have no application here. There is no uncertainty in the case before us what matters were litigated and determined in the former action. They are fully disclosed by the record.
In such case, says Herman on Estoppel and Res Judicata, volume 1, section 111: “The estoppel of a judgment covers the whole matter in dispute in the cause in which it is rendered, and to every point decided between the parties in the course of the proceedings which led to the judgment. The judgment itself operates as a bar, and the decision of a particular issue as an estoppel, but their conclusive
It would be unsafe to relax the well-established rule as to the effect of judicial records. Rights of property and the repose of society depend upon them, and the safer and better. rule, as well as the sounder policy, requires that the same 'should be adhered to. These views lead to an affirmance of the judgment.