79 Minn. 86 | Minn. | 1900
The plaintiff brings this action to recover a sum of money which he claims should be returned to him by the assignee of an insolvent estate, who has received the same, but, as is claimed, in equity and good conscience should be repaid.
Man waring, the assignee of McLaughlin & Kilty, in a former action considered 'by this court (75 Minn. 542, 78 N. W. 1) recovered of this plaintiff the possession of a stock of boots and shoes transferred to him before assignment by the insolvents. The recovery, upon the issues in that case,, may have been accorded by the jury under the instructions of the court, for the reason that the sale from McLaughlin & Kilty to O’Brien, the plaintiff, was fraudulent, or because of his want of care in ascertaining the previous condition of
It may be conceded for the purposes of this review that appellant's complaint sets forth a cause of action which would entitle him to recover from the assignee the money which he paid for the stock of goods in question. But it also appears from the answer in the former action, duly pleaded in this, that the good faith of this very payment was an issue duly tendered by this plaintiff, which was or might have been litigated in that action. Paragraph 11 of the answer in the former "suit makes reference to this issue in the following words:
“That the transaction between this defendant [plaintiff here] and said McLaughlin & Kilty was a cash one, and the purchase price was paid at the time of said purchase in the usual way by the check, * * * which said check was fully paid, * * * which fact the plaintiff [respondent here] * * * well knew, * * * [and] that said sum, to wit, $12,500, was duly turned over and delivered to plaintiff herein.”
That this was a part of the answer in the first suit, and that issue was joined upon it, followed by judgment, was admitted before the trial court and conceded upon this appeal. In our view, these concessions conclude the appellant, and forbid further litigation of the rights of the parties concerning the subject. Whether the appellant introduced any evidence to support this allegation on the former trial, which he denies, is immaterial. He might have done so, and is concluded by the result as effectively as if he had. Thompson v. Myrick, 24 Minn. 4; Long v. Webb, Id. 380; Geiser T. M. Co. v. Farmer, 27 Minn. 428, 8 N. W. 141; Drea v. Cariveau, 28 Minn. 280, 9 N. W. 802; Goldschmidt v. County of
The order of the district court dismissing the cause is affirmed.