146 Va. 747 | Va. Ct. App. | 1926
delivered the opinion of the court.’
The plaintiffs” in error complain of a judgment rendered against them in July, 1924, in favor of Sarah Sparrow, the defendant in error, for $3,120.00 in an action instituted by .a notice of. motion for judgment.
The notice of motion filed by Sarah Sparrow as plaintiff in the trial court assigned two separate grounds upon which she based her right to recovery against the defendant executors. In the first place she alleged that John Winslow, the decedent, had contracted with her, in his life time, that he “would will to the plaintiff all his property” upon consideration that she would feed, board and care for him during-the balance of his life, that she had performed her part of the contract, but that John Winslow had failed to will her his property. In the next place the plaintiff alleges, in the nature of second count, as follows:
“That heretofore, to-wit, in the year 1902, plaintiff' and said John Winslow contracted that plaintiff should board and feed and care for him until his death, and that he would pay to plaintiff a reasonable amount at his death for such board, feeding and care; and plaintiff fully performed her part of said contract, and boarded,, fed and cared for him until his death in 1923;; but neither he nor his executors have paid plaintiff,, but have failed so to do; and the reasonable value of' such board, feeding and care is a large amount, to-wit,. $5,000.00.”
To this notice the defendants filed a plea of nonassumpsit and grounds of defense, denying liability under either cause of action asserted against them.
The defendants, plaintiffs in error here, rely upon three assignments of error which will be considered
The first assignment of error is based upon the refusal of the trial court to dismiss the motion or render judgment for the defendants, for the reason alleged by the defendants that the matters in issue had been fully adjudicated between the parties in a chancery cause, decided in the same court, in which Sarah Sparrow was the plaintiff and the same executors- and others were defendants. The bill of exceptions in this regard shows the manner in which this, question of res adjudícala was raised as follows:
“Be it remembered, that on the day of the trial of this case, to-wit: July 17, 1924, and before the trial thereof, the defendants, by their attorney, presented to the court exhibits Nos. 1, 2 and 3, which are fully set forth with the evidence, in the plaintiff’s bill, of exceptions No. 2, and upon their plea of nonassumpsit and grounds of defense, moved the' court' to render judgment for the defendants upon the notice of motion and to dismiss the same because the matters in issue had been adjudicated and fully determined * * .”
The court overruled the said motion of the defendants and required them to go to- trial upon the merits of the case, to which ruling the defendants excepted. The three documents upon which this motion was based, referred to in the bill of exceptions as exhibits Nos. 1, 2 and 3, with the. evidence, were introduced upon the trial before the jury. Exhibit No. 1 is a copy of the will of John Winslow, deceased, consisting of three separate papers, and also the order of the Hustings Court of Portsmouth admitting the three writings to probate as the will of John Winslow, entered on the 21st .'day of January, 1922. The exhibit No. 2 is a decree entered by the same ‘court
In applying the doctrine of estoppel by former judgment confusion of thought and expression, as was said in the recent case of Brunner v. Cook, 134 Va. 266, 114 S. E. 650, is apt to arise unless the distinction is carefully observed in the application of the doctrine of -res. adjudicóla between a case in which the defense is made when the second case is between the same parties and upon the same cause of action, and the case in which the subsequent action, although between the same parties or some of them, is not upon the same cause of action. In the first mentioned instance the former judgment estops the parties as to all matters litigated or which might have been litigated. In the second instance the former judgment acts as an estoppel only as to the matters actually put in issue and adjudicated by the court. It is apparent here that the second action, if taken as between, the same parties, is upon an entirely different claim or demand and that the decree in the chancery cause offered by the defendants operates as an estoppel only as to the matters in issue or point controverted upon which the finding or decree of the court was rendered. A close examination of the decree upon which the defense of res adjudícala is based in the instant case shows that the controverted question upon which the court passed would in no way effect the new cause of action upon which the notice of motion was based and therefore the ruling of the “lower court was correct. It appears from the record that after the verdict was rendered and a motion made to set it aside the defendants moved the court to file a formal plea of res adjudicata embodying the matters upon which the motion had been based and embracing a copy of the bill in
The first assignment of error cannot be sustained. The second assignment of error is to the refusal of the court to set aside the verdict of the jury as contrary to the law and the evidence. After the preliminary motion before the court had been overruled the parties went to trial before a jury upon the issue of nonassumpsit, and after all the evidence on both sides had been adduced the court instructed the jury, and the jury rendered a verdict for three thousand one hundred and twenty dollars, upon which judgment was rendered, the court having overruled the motion of the defendants for a new trial. The evidence shows that at the time of Winslow’s death he had $6,657.59 to his credit in a bank besides some little personal property and the house and lot assessed at $2,600.00. The verdict rendered by the jury being only about one-third of the total value of the testator’s estate, it is manifest that the jury found against the plaintiff on the contract alleged by her according to which the testator had agreed to give her his entire estate by his will,-,and that they found for the plaintiff under the second claim made by her that she was entitled to compensation for about twenty years of service rendered to the testator and fixed her compensation at the amount for which the verdict was rendered. On the trial twelve witnesses testified for the plaintiff and seven witnesses for the defendant. The plaintiff and testator were both colored persons and nearly all
After all the evidence was in the court gave the-, following three instructions, the first two being given at the instance of the plaintiff, and the third upon-the request of the defendants:
“(2) The court instructs the jury that if they believe from the evidence that John Winslow agreed with the plaintiff that if she would serve him he would leave her his property at his death and pursuant to this agreement she did serve him, the jury should find for the plaintiff for the fair value of the property he promised to leave.
“(3) The court instructs the jury that unless they believe from the evidence that there was an agreement between Sarah J. Sparrow, the plaintiff, and John Winslow, the deceased, that she was to furnish service to John Winslow for compensation, then the jury should find for the defendants, but the court further instructs the jury that if they believe there was such agreement then they should find for the plaintiff the value of such services as were furnished.”
The third assignment of error rests upon the bill of exception to the giving of the second of the above instructions offered by plaintiff. It is argued that there was no evidence and certainly not' sufficient evidence upon which to base a submission to the jury of the question as to the existence of a contract by which Winslow agreed to leave his property to the plaintiff, and it is further argued that inasmuch as there was real estate embraced in the property left by Winslow that such a contract was within the statute of frauds and should be in writing. We doubt very much whether the evidence was sufficient to sustain the claim that Winslow had agreed to leave the plain
Upon the argument of the case before this court-objections were made to the consideration of the case at all by the court, because the bills of exceptions were-improperly certified. In the oral argument it was insisted that the bills of exceptions upon which the-three assignments of error were based were not signed within sixty days from the date of the judgment as-required by law. The judgment was rendered on the-24th day of July, and the bills of exceptions were-signed on the 22nd day of September, which, counting-July 24th as the first day, was the sixty-first day from the date of'the judgment. It appears, however, that-September 21st fell on a Sunday. An exactly parallel ease will be found in Lakeside Inn v. Commonwealth, 134 Va. 696, 114 S. E. 769. The court there held,, commencing with the day on which the judgment was rendered as the first day, bills of exceptions might be-signed on the sixtieth day and that if, as was the fact, in that case, the sixtieth day fell on Sunday Which.
Upon the whole case it seems to this court that the defendants have had a fair and impartial trial before the jury under the supervision of the trial court, the-judge of which approved their verdict, and that there is no error prejudicial to the defendants on the trial.
. For the reasons above given the judgment of the trial court will be affirmed.
Affirmed.