102 Mass. 239 | Mass. | 1869
In the first suit between these parties, the defendant relied, in defence, on the fact that the note now in suit, dated' November 14, was given in renewal and payment of the note upon which that action was brought, which was dated September 10, 1866. Hooker v. Hubbard, 97 Mass, 175. The court
The present action is upon the note of November 14. In defence, the answer in substance sets tip that the plaintiff fraudulently. obtained possession of the note; that it was signed by him in blank, under an agreement with the plaintiff’s agent that it should be made payable to the plaintiff and be by him first indorsed, and the defendant should be liable thereon only as a cosurety with the plaintiff; and finally, that it was given in renewal of another note, which had been indorsed by him for the plaintiff’s accommodation.
At the first trial of this action, evidence was given in support of each ground of defence set up; and, it being admitted or proved that the note was delivered upon a condition, oí which the plaintiff had knowledge, and which was never fulfilled, it was ruled that it never became the note of the defendant, and could not be enforced as such by the plaintiff. Under this ruling, a verdict was rendered, as directed by the court, for the defendant. The exceptions taken to this ruling and direction were here sustained, on the ground that, when the defendant pleaded the note in suit as given in payment or renewal of the former note, he waived the right to take the benefit of the nonperformance of the condition, and ratified its absolute delivery; and, having prevailed on that ground, is now estopped to assert the contrary.
A new trial was had accordingly, and the case now comes up on the defendant’s exceptions. The defendant, at this last trial, offered to prove the other matters contained in his answer, namely, that the original note was signed wholly for the plaintiff ’s accommodation, or, at least, that it was signed upon the agreement that the parties should be holden as cosureties. This evidence was held inadmissible by the court, because the validity of the note had. been judicially established in the former suit, and could not be controverted by the defendant; and a
The court are of opinion that, upon the facts here presented, the learned judge erred in extending the doctrine of estoppel by former judgment to the degree stated. Estoppels of this description are attended with qualifications which must be strictly observed. They are conclusive only as to the facts which were directly put in issue and determined in the former suit. If the pleadings present several distinct propositions of fact, the judgment is not conclusive upon any one of them, unless it appears, from the record or aliunde, that the issue upon which it was rendered was upon that proposition. It must appear that, upon the question of fact presented, the party has had a day in court in which he either did or ought to have put it in issue.
The grounds of defence upon which the defendant now relies have never been passed upon by the jury. The verdict in the former suit was general, but it was rendered in the defendant’s favor solely because it was shown that the note declared on had been paid or renewed by the present note. This fact alone was established, and it was all that was necessary to the defence in that case. And we have held that it was so far established that the defendant could not be permitted afterwards to show that it was not so taken in renewal, because subject to a condition not complied with.
But it has been held many times that the renewal note is open to those defences which touch the consideration of the original note. A total or partial failure or want of consideration in the original note may be shown. Commonwealth Insurance Co. v. Whitney, 1 Met. 21. At the time of the trial on the first note an action was pending on the second, and the defendant chose to reserve these grounds of defence for that note. The facts upon which they may be supported have never been passed upon in any previous adjudication, and the evidence in support of them should have been received. Burlen v. Shannon, 99 Mass, 200. Same v. Same, 14 Gray, 433. Exceptions sustained.