252 F. 337 | 8th Cir. | 1918
This writ of error assails a judgment upon a directed verdict in favor of the plaintiff below, J. R. Owens Company, a corporation, against the defendant, I. E. Officer, on the ground that he was estopped by the proceedings and judgment in a prior action between these parties, which involved the crucial issues in this case, from maintaining the defense he pleaded.
The basis of this action is six promissory notes, aggregating $10,-000, which the company alleged that Officer made and delivered to it for value received, but which he has never paid.” The defense of Officer is that there was never any consideration for the notes, and that the consideration failed, in that the consideration was the performance by the Owens Company of its covenants in a contract between it and Officer, made on March 8, 1912, at the same time he made and delivered the notes, and that the company failed to' perform these covenants. In his answer, however, he not only pleaded this defense, but he also pleaded that there was another action pending in the court below between the same parties as this action and for the same cause, which he commenced on June 5, 1915. That action was No. 338 in the court below, and it was an action by Officer against the company for damages for the breach of its covenants in the contract of March 8. 1912, in many respects, on account of which he asked and recovered a judgment for $15,000. The action here under consideration was
At the trial of this case the Owens Company introduced in evidence the six promissory notes and rested. Officer introdeed evidence tending to sustain the. averments of his answer. He then admitted in open court that all the allegations of facts in the reply were true. The Owens Company introduced the judgment roll in No. 338 and the charge of the court to the jury in that case, which disclosed these facts: Officer alleged in his complaint for damages in that case that at the time the contract was made he executed and delivered to the company his promissory notes for the $10,000, and as collateral security therefor certain promissory notes and mortgages made by a telephone company; that he received no consideration for any of them, and that the consideration for them failed; that the company failed and refused to perforin any part of the agreement of March 8, 1912, to his damage in several ways; that he had demanded a return of all the notes and mortgages and the company had refused to deliver any of them; and he prayed for a judgment of $15,000. In its answer to that complaint the company denied that the notes were without consideration, and denied that the consideration therefor had failed. It denied that it had failed to perform its part: of the agreement, and denied or explained the averments of breaches and damages set forth in Officer’s complaint. At the close of the company’s evidence at the trial in case No. 338 on a /Saturday the court informed counsel for the parties what he intended to charge the jury, and that he should instruct them that, if they found that the Owens Company had committed such a breach or such breaches of the contract that Officer was justified in abandoning it, one item of damages which Officer would be entitled to receive by their verdict would be $10,000, and interest from August 8, 1912, on account of his liability on his outstanding notes for $10,000, and the court subsequently so charged. On the subsequent Monday after this announcement the trial continued. The plaintiff moved to amend the prayer of his complaint to ask a recovery of $25,000, instead of $15,000; but the court denied that motion, charged the jury as he had declared he would, instructed them on the other issues in the case, and that they could not render a lawful verdict for more than $15,000, because that was all the plaintiff asked in his complaint and. they returned a verdict for Officer for that amount. After the verdict, and
When the facts just stated had been proved in the case now in hand, and the parties had closed their evidence, the court directed the jury to return a verdict for the Owens Company on the ground that Officer was estopped by the proceedings in case No. 338 from maintaining its only defense in this action, to wit, that the notes for $10,000 were without consideration, and that the consideration therefor had failed, and judgment accordingly was rendered.
Counsel for Mr. Officer opened their argument for a reversal of this judgment with the contention that the evidence in this action conclusively proved that there never was any consideration for the notes for $10,000, and that the consideration therefor failed, and that, if this position is untenable, there was some evidence to that effect, and therefore the court should have submitted the question of consideration to the jury. But, if the court below was right in its conclusion that Officer was estopped from maintaining his claim of want and failure of consideration by the proceedings in case No. 338, the question whether or not there was any substantial evidence in support" of that claim in this case is immaterial, and may be here dismissed.
Officer pleaded in No. 338 that the notes were without consideration and that their consideration had failed, and the Owens Company alleged in its answer to that complaint that the notes for the $10,000 were the $10,000 mentioned in paragraph 1 of the contract of March 8, 1912. That paragraph reads: '
“Now, therefore, in consideration of the mutual promises herein contained, and in consideration of the payment of $10,000 by the party of the second part to the party,of the first part, as evidenced by notes for siaid amount secured upon collateral, as hereinafter provided, the parties hereto have agreed as follows.”
The court charged the jury in No. 338, in view of the pleadings and the contract, which are before us, and the evidence in that case, which is not before us, that Officer never received any of the goods which the contract provided he might buy, and have credit for the payment of the purchase price of, oh account of the notes for $10,-000, and the collaterals lie gave, that he might recover the value of the collaterals, and “that his promissory notes to the amount of $10,000 are still outstanding and constitute a liability against him; therefore one item of damage that the plaintiff would be entitled to would be $10,000, with interest thereon since August 8, 1912, to date.” There is only one ground on which the court could have given that charge, and that is that, notwithstanding the facts that the goods had not been delivered by the company and there had been breaches of some of its other covenants, there was a valuable consideration for the notes in the making by the company of its covenants, and that that consideration had not failed. If it had determined that there was no consideration for the notes, or that the consideration therefor had failed, the notes would have been void in the hands of the company, and there was evidence in this case that there was no evidence in No. 338 that the notes have ever been indorsed or transferred, Officer would not have been liable upon them, and the court would not have instructed the jury that he was so liable, or that he was entitled to more than $10,000, on account of that liability. The result is that the record has convinced us that the issues, whether or not there was any consideration for the notes for $10,000, and whether or not the consideration therefor failed, were made by the pleadings, presented to the court for determination by
Nor is there anything inconsistent with these propositions in the decisions cited. In none of them did these propositions arise or were they considered. For example, in Hollehan v. Roughan, 62 Wis. 64, 22 N. W. 163, the plaintiff was induced by fraud to buy a warranted horse and to give his note for $125 for it. He tendered the return of die horse and demanded the return of the note and then sought to recover the fac e value of the note, for the failure to return it. ' The court held that as the proof was that the note was past due and in the hands of the vendor, and that it was void for the fraud proved, the maker could not recover, because the note was of no value and could not be used to injure him; but there is nothing in that case relative to the issue here. There the maker of the note rescinded the contract for fraud, and sued to recover the face value of his note because the defendant failed to return it, and thus to complete the rescission. In the case at bar Officer affirmed the contract, brought his action for its breach, and recovered damages on the ground that he was liable to, pay $10,000 mid interest on his notes, and now he seeks to defeat a recovery on them on the ground that he is not liable to pay anything upon them. The other cases just cited are as far afield as Hollehan v. Roughan.
If there was error in the ruling of the court denying the motion to-permit the amendment to increase the amount for which Officer prayed, his counsel might have corrected that error by -accepting the offer, which was made after the verdict, of counsel for the Owens Company to consent to, and of the court to make, an order for a new trial. But counsel for Officer, perhaps wisely, declined the offer, took their judgment for the $15,000, and insisted upon holding it, and Officer is now estopped by their acceptance and their silence from maintaining that there was any want or failure of consideration for the notes, or that he has not recovered all his damages for his liability upon them. If, after the rendition of the judgment in No. 338, he had brought another action for more damages on account of his liability on the notes for' $10,000, on the ground that he did not recover enough in his first action, the fatal answer would have been that the judgment in No. 338 was a conclusive adjudication that he did recover full damages on that account, that that issue was res judicata, and that answer is as fatal to the defense in this action as it would have been in that.
Counsel cite cases in support of the position that parties- are not always estopped in second suits between them upon a different cause of action by rulings on the law or reasons given by the court therefor in the first suit; and this is conceded. But neither this position nor the citations rule the case at bar, and neither persuasive reason nor applicable authority has been found to overthrow the estoppels which the facts and the law of this case establish.
Finally, complaint is made that the question of consideration vel non.
The judgment below must therefore be affirmed; and it is so ordered.
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