2 Blackf. 465 | Ind. | 1831
This is an action of trover brought to recover the value of 2484 barrels of corn. Plea, not guilty. Verdict for the plaintiff below for 220 dollars, and judgment. A motion for a new trial founded upon the following reasons,— 1st, The verdict is contrary to law and evidence, 2d, The damages are excessive, 3d, The record offered in evidence by defendant was conclusive between the parties, and the verdict
The testimony shows that, about the last of December, 1828, M-Kay had, at a landing on the Ohio river, 2484 barrels of corn; that it was hauled by Picquets teams to his cribs, and the parties agreed that if it did not spoil, having been under water five or six hours, Picquet was to keep it at one dollar per barrel, and if it did spoil, M-Kay was to take it away, paying Picquet the expense of hauling it from the landing to the cribs, amounting to 17 dollars. After the deposit of the corn, M-Kay received from Picquet 60 dollars in cash and 15 dollars in goods. The terms upon which the money was paid do not appear. On the 20th of February following, M-Kay demanded the corn. Picquet refused to deliver'it, saying it was his, and on being asked for the price of it, remarked that he would pay for it when he pleased. It appears, that Picquet stated that he did not advance the money on account of the corn, but that a note was taken payable to C. M. Martin Sf Co., merchants of Madison, for the money, and by them endorsed to him; that good corn was worth at the time of the demand one dollar and 25 cents per barrel; that after the demand was made, Picquet offered to let M-Kay have the corn, on his paying the amount of money and goods advanced and the expense of hauling, or to give him 624 cents per barrel for it; that the corn was noticed on the day of the demand—a part was frozen, and the balance wet and damaged and daily becoming worse;- that neither the money advanced,nor the expense of hauling, had been tendered; that an authenticated copy of a record of a chancery cause, brought by Picquet against M-Kay in the Gallatin Circuit Court, Kentucky, was admitted in evidence by the Court, and read to the jury; that the corn, the subject of the suit in Kentucky, was the same for which this action was brought; that the chancery suit in Kentucky was brought after the institution of this action; and that a part of the corn was sold in May, 1823, at 75 cents per barrel, and that one other crib was as good as that which was thus sold.
To sustain this action, it is essential that the plaintiff prove property and the right of possession in himself, and a conver
It is also alleged that the damages are excessive. New trials should he granted, when the finding of a jury has stamped upon it a palpable disregard of the rights of a party, and the-indulgcnce of a prejudiced rather than a just view of the case. A
It is also contended, that the decree rendered in the chancery cause in Kentucky, is conclusive in this suit, as the subject-matter of each is the same. The position is unquestionably correct, that the judgment of a Court of competent jurisdiction is conclusive between (he parties, the same matter being in controversy. To give it, however, this conclusive effect, it should be pleaded as an estoppel. Outram v. Morewood, 3 East, 346. In the case of Vooght v. Winch, 2 Barnew. & Ald. 662, the Court of King’s Bench, upon a review of the cases upon the subject of estoppels, decided, that if the estoppel is not relied upon, but issue is taken on the fact, the jury will not be bound by the estoppel. The same doctrine is found in 1 Stark, on Ev. 205. The defendant has relied upon the general issue. The record with other testimony is given to the jury; they weigh it, and if they think, notwithstanding the decree, that the case is with the plaintiff, they can find accordingly. Church v. Leavenworth, 4 Day, 274.—Canaan v. G. W. Turnpike, 1 Conn. 1.
We are therefore of opinion, that the Circuit Court acted correctly in refusing a new trial.
The judgment is affirmed, with 3per cent, damages and costs.