Harrington v. Huff & Mitchell Co.
118 N.W. 924
Mich.
1908
Check Treatment
Grant, C. J.

(after stating the facts). The principal and only question which we need to determine is whether, by the judgment in the former suit, the liability of the defendant is res ad judicata. An examination of the declaration, plea, testimony, charge of the court, and the judgment rendered ‍​​​​‌‌​‌​​‌​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​‌‌‍establishes the fact that both suits are based upon the same lease. The sole issue in the former case was: Is thе written lease still in force, or has it been superseded and abandoned by the mutual agrеement of the parties ? The evidence as to the notice *141given by the defendant, the acceptance of the keys, the possession taken, the conversatiоn between them, is sub-, stantially the same in both suits. The plaintiff made his case by the production of the lease and evidence that the defendant had continued in possession under it. The burden, as the court held, was then cast upon the defendant to show that the lease wаs not in force, and had been superseded by some other arrangement. It was the duty of the defendant to interpose all the defenses to that issue upon which it relied. The law dоes pot permit a defendant to split up his defenses ‍​​​​‌‌​‌​​‌​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​‌‌‍to a single issue. It would be a reproach to the law to permit the defendant to rely, in one suit for the rent, upon the claim that the tenancy had been changed by agreement from a yearly rental into оne from month to month, and, in a suit upon the next month’s rent, to interpose another defensе, that of surrender and release, and, when sued for a third month’s rent, to interpose, perhaps, the defense of a violation of the contract on the part of the lessоr. This we understand to be the universal rule, and the authorities cited by the defendant are not in сonflict with it.

In Harrison v. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405 (3 L. R. A. [N. S.] ‍​​​​‌‌​‌​​‌​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​‌‌‍954), the rule is stated thus:

“When the second suit is upon the same cause of action аnd between the same parties as the first, the judgment in the ‍​​​​‌‌​‌​​‌​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​‌‌‍former suit is conclusive in the latter as to every question which was or might have been presented in the former.”

In Henderson v. Henderson, 3 Hare, 100, the Vice Chancellor states the rule thus:

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becоmes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires ‍​​​​‌‌​‌​​‌​‌​​‌‌​‌‌‌​​‌​​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌​‌‌‍the parties to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the sаme subject of litigation in respect of matter which might have been brought forward as pаrt of *142the subject in contest, but which was not brought forward, only because they have, from negligеnce, inadvertence, or even accident, omitted part of their case. Thе plea of res judicata applies, except in special cases, nоt only to points upon which the court was actually required by the parties to form an оpinion and pronounce a judgment, but to every point which properly belonged tо the subject of litigation, and which the parties, exercising reasonable diligence, might hаve brought forward at the time.”

The same rule is recognized in Cromwell v. County of Sac, 94 U. S. 351. That case well illustrates the application of the rule, and points out the distinction where the former decision is res adjudicata, and where it is nоt. In that case the former suit was upon a bond issued by the county of Sac, and it was held under thе evidence that the plaintiff was not a purchaser for value, therefore not a bona fide purchaser. In a suit upon other bonds, he was permitted to show that' as to thоse bonds he was a purchaser for value and a bona fide purchaser. The former suit was held not to estop the plaintiff to setup that claim. The same bond was not in issue in the second suit. If the second suit had been brought upon an interest coupon of the samе bond, it would have involved the good faith of the purchase of that bond, and the judgment would hаve been res adjudicata as to suits upon the other coupons. This court has also recognized the same rule. Jacobson v. Miller, 41 Mich. 90; Bond v. Markstrum, 102 Mich. 11.

The defendant in the first suit permitted its case to go to the jury uрon the theory that it had made an arrangement with the plaintiff for a verbal lease from month to month, and that this superseded the written lease. The same testimony as to the surrendеr and release was before the court in that case as in this. It could have asked thе court for an instruction upon that point. At any rate, it was a defense it was then bound to make or be thereafter estopped to assert it upon a second suit for rent.

Judgment reversed, and new trial ordered.

Blair, Hooker, Moore, and McAlvay, JJ., concurred.