J. T. McTeer Clothing Co. v. Hay
79 S.E. 955
N.C.
1913
Check Treatment
AlleN, J.,

аfter stating tbe case: There appears to be some confusion in the authorities as to the matters concluded by judgment, some declaring that it estops only as to the questions actually litigated, and others that it not only estops as to those litigated, but also as tp аll that might have been litigated in the action.

The apparent conflict arises from failure to distinguish between the difference in ‍‌​‌​​‌‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌​​​​​​‍the causes of action, both rules existing, but being applicable to different facts.

The line is clearly marked in Cromwell v. County of Sac, 94 U. S., 351, which has been approved in numerous cases, in which the Court says: “The questions presented for our determination relate to the operation of this judgment as an estoppel against the рrosecution of the present action, and the admissibility of the evidence to connect the present plaintiff with the former aсtion as a real party in interest. In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action uрon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other - admissible matter which might have bеen offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as tq the validity of the instrument and the amount due upon it, although it .be subsequently alleged that perfect defenses actually existed, of which no proof was оffered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by сompetent *498 evidence, the subsequent allegation of théir existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed. The language, therefore,‘whiсh is so often used, that a-judgment estops, not only as to every ground of recovery or defense actually presented in 'the actiоn, but also as to every ground which might have been presented, is strictly, accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation- between the parties- in proceedings at lаw, upon any ground whatever. But where the second action between the same parties is upon a different claim or demand, the judgmеnt in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding' or verdict was rendered. In all causes, therefore, where it is sought to apply the' ‍‌​‌​​‌‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌​​​​​​‍estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be аs to the point or question actually litigated and determined in the original action; not what might have been thus litigated and determined. Only upon such matters is' the judgment conclusive in another action. . It is not believed that there are any cases going to the extent that, becausе in the prior action a different question from, that actually determined might have arisen and been litigated, therefore, such possible question is to be considered as excluded from consideration in a second.action between the same parties on a differеnt demand, althoughToose remarks looking in that direction may be found in some opinions.- On principle, a point not in litigation in one aсtion cannot 'be received as conclusively, settled in any subsequent action upon a different cause because it might have bеen determined in-the first action.”

If the evidence offered by the plaintiff is admissible and true, the former judgment is not, under this rule, an estoppel аs to the cause of action alleged, because it was not in issue in the former action and this action is not on the same' claim or demand.

*499 We are also of opinion that the evidence ‍‌​‌​​‌‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌​​​​​​‍offered by the plaintiff is competent. -

The question was decided in Yates v. Yates, 81 N. C., 401, which has been approved on this point in Bryan v. Malloy, 90 N. C., 513; Baker v. Garris, 108 N. C., 227; Jones v. Beaman, 117 N. C., 263.

In the Yates case the Court says: “A verdict and judgment direсtly -upon the point in issue is, as a plea, a bar, or, as evidence, conclusive upon the same matter directly in question in another suit, not extending to any matter coming collaterally or incidentally in question or inferred by way of argument. Duchess of Kingston’s case, 2 Smith Leading Cases, 424. This became a rulе and is enforced in the courts upon the idea that when a point or question is once litigated and decided by a verdict and judgment, it was justiсe to the parties and good policy that the same should not again be drawn into contest in a subsequent suit between the same pаrties. And to give effect and application to the principle, the rules of pleading required it to be availed of by plea of the judgment as a bar, or estoppel, or as evidence on the general issue. And anciently under the system of pleading, conducivе to the end of ascertaining and preserving in a permanent form the material issues and the adjudication thereof, it was held that the rеcord' should not estop, unless it showed on its face that the very point sought- to be kept from a second ‍‌​‌​​‌‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌​​​​​​‍contest was distinctly, presеnted by an issue and expressly found-by a jury.- A system of pleading more general and loose having been adopted and allowed at this day, but little of the ancient certainty of allegation and denial is now required; and hence it is difficult, if not impossible, to ascertain the subject-matter of a controversy and the precise points made and decided by a mere inspection of the record as formerly; and therefore it grew to be the rule that it was not necessary that the record should show definitely the precise point or question upon which the right of a plaintiff to recover, or the validity of a defense depended, but only that the same matter might have been litigated and decided, and that intrinsic evidence might be admitted to define what the question was, its mate *500 riality, and its decision by tbe jury. Young v. Black, 7 Cranche, 565; Packet Co. v. Sickles, 24 How., 333; Wood v. Jackson, 8 Wend., 9; Eastman v. Cooper, 15 Pick., 276; 1 Greenl. Ev., sec. 531. The rule of the admissibility of parol testimony in support of the- plea of estoppel to show what was the material point, and its decision in a former action, generally prevails at this day.”

We are therefore of opinion there is ‍‌​‌​​‌‌​‌​​​‌​‌‌​‌‌​‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌​​​​​​‍error, and a new trial is ordered.

New trial.