53 N.J.L. 81 | N.J. | 1890
The opinion of the court was delivered by
This is an action for damages for the breach of a contract. It is true that the damages arising from defects in the mason work resulted in the first instance to Douglas, but nevertheless they were damages that accrued as .a natural consequence of the breach of the defendant’s contract. On the theory that the defendant’s contract was identical in its scope and legal effect with the plaintiffs’ contract with Douglas with respect to the mason work, the loss sustained by the plaintiffs in the damages they might be compelled to pay Douglas for defects in this work were damages that resulted directly to the plaintiffs as a natural consequence
The distinction is between a simple contract to indemnify against damages and a contract to do some act for which the plaintiff is primarily liable, as to pay money for which the plaintiff is bound, or to do work for a third person which the plaintiff has contracted to do. This distinction is clearly stated by Mr. Justice Dixon in Sparkman v. Gove, 15 Vroom 252. The cases there cited are illustrations of the principle that a liability to pay, incurred in consequence of the defendant's failure to perform his contract, may be made a ground of special damages, although the plaintiff has not satisfied and ■discharged that liability.
The declaration in the Douglas suit contained averments that the mason work as well as the other work embraced in his contract with these plaintiffs were improperly done, and claimed damages generally for such breaches of contract. Though McGrath did not join in defending that suit, he knew one of the grounds of complaint therein was the defect in the mason work. He had notice of the suit, with the request that he should unite in defending it, and appeared at the trial as a witness called by the defendant. After verdict a rule to-show cause was obtained by the defendant’s counsel, which was discharged for the reason that McGrath refused to pay the-expenses of prosecuting it.
By the judgment in the Douglas case, the plaintiffs’ liability to him was liquidated. The record of the recovery in that suit was competent evidence, at least for the purpose of showing that Douglas made a demand of them in resjaect to defects in the mason work, and that that demand was successfully prosecuted. The verdict was also competent evidence in this suit as special findings of issues included in the record submitted to the jury by the trial court. The plaintiff in that suit had
The material question is as to the effect of that record in this suit. Where a party is sued for a cause of action for which he has remedy over against another person as and for
The rule in question is most frequently applied where there is a contract of indemnity or warranty, or the relation between the parties is that of principal and surety, master and servant, principal and agent, and the like. But these instances do not mark the limits within which the doctrine is applicable. It has been applied to contracts of reinsurance (New York, &c.,
On the introduction of the record of the judgment in the former suit, the estoppel will extend no further than the issues that were capable of being litigated in that suit. To entitle ■the plaintiff to indemnification for the damages recovered against him in the former suit, he must show a contract with the defendant which in terms and legal effect embraces the
The defendant in this action having had notice of the Douglas suit and of its object, and also an opportunity to review the proceedings in that suit after verdict, will be concluded by that record with respect to the fact that the mason work was not done in compliance with the plans and specifications, in conformity with the contract of the plaintiff with Douglas, and also as to the fact that in consequence thereof the damages as found by the jury accrued therefrom, and as to all matters of defence against the demands of Douglas that might have bee'n presented in that suit. But he was at liberty to' insist and prove that his contract with the plaintiffs did not in that respect embrace the liability the plaintiffs incurred under their contract with Douglas, or that the defective workmanship' or materials used were occasioned by the plaintiffs’ own acts' or were consented to by them.
The contract between the defendant and the plaintiffs was a verbal contract. The defendant made his estimate for the mason work, including the excavation for the cellars, after an inspection and examination of the specifications for the mason and carpenter work, before the plaintiffs made their contract with Douglas. The defendant testified that he did not contract for all the mason work called for in the specifications. He enumerated the omission of a bluestone course under each tier of beams and a change in the description of the brick for the
The evidence touching these matters was meagre and unsatisfactory, but we think enough appears to justify a new trial, in order that the case may be fully presented on the merits. As the case appears at this time it does not call for a consid