269 Mass. 32 | Mass. | 1929
This is an action of contract brought upon three counts in the plaintiff’s declaration. The first two counts are for use and occupation of a parcel of land with the buildings thereon situated on the northeastern side of Herman Street in Worcester, from September 8, 1922, to August 11, 1924, together with interest thereon. The third count is upon a written lease dated July 23, 1919, by which the defendants agreed to pay the plaintiff the sum of $67.50 per month for the premises described. This count alleges that the defendants owe the plaintiff the sum of $1,552.50 as rent from August 23, 1922, until July 23, 1924, if said lease was in force and effect during that period. The answer of the defendants is a general denial, and the further answer that all the facts involved in the present action have been previously adjudicated in an action between the same parties involving rent for a period previous to the rent claimed, in the plaintiff’s declaration in this action; and that all issues involved in the present action have been actually tried and determined in the said previous action, and that the plaintiff is therefore estopped from prosecuting this action.
The case was tried to a judge of the Superior Court without a jury. At the close of the evidence the defendants asked the judge to allow a motion that the plaintiff could not recover on the first and second counts on the ground that the claim made thereunder was res judicata; but they admitted the plaintiff was entitled to recover on the third count. The defendants’ motion in writing was allowed and the plaintiff’s exceptions were saved upon this ruling. The judge then found for the plaintiff on the third count. The case comes before us on the plaintiff’s exceptions to this ruling and to the admission of certain evidence at the trial.
All the material evidence including, by consent of the plaintiff and defendants, the docket entries in cases num
On August 15, 1921, the plaintiff brought an action against the defendants with a declaration in two counts, one for the use and occupation of the premises occupied by the defendants on the northeasterly side of Herman Street at the rate of $125 per month for a period between August 23, 1920, and August 15, 1921. A second count was upon an account annexed, for the same time at the same rate per month. Except that they cover different months, the action in that suit and counts one and two in all subsequent suits are alike, in that the actions are based on the alleged oral contract made after the fire. At the conclusion of the action upon the writ dated August 15, 1921, the trial judge ordered a verdict for the defendants; the case was afterwards settled by agreement of parties.
On September 8, 1922, the plaintiff brought an action (No. 24571) against the defendants on the oral agreement to recover for the use and occupation of the same premises on Herman Street; and on a second count annexed to recover the same sum for the same time as in the first count for use and occupation. In action No. 24571 the plaintiff was allowed to amend his declaration by adding a third count upon the covenants to pay rent contained in the lease dated July 23, 1919, supra. In this action there was a verdict
Subsequently, the plaintiff brought another action against the defendants. The declaration in this action, No. 25469, alleges rent for the use and occupation of the same premises as in the prior suits, from September 8, 1922, to January 25, 1923, and an account annexed covering the same period at the same rate, i. e. “Peter Bros, to Harry Rosenberg, January 25, 1923, to use and occupation of land on Hermon St. from Sept. 8, 1922 to Jan. 25, 1923 at the rate of $125 per month, $570.72.” In this action the plaintiff was allowed to amend his declaration by adding a third count, which reads: “and the plaintiff says that he made a leasehold agreement with the defendants dated July 23, 1919, by which the defendants agreed to pay him the sum of $67.50 per month, and that the defendants have not paid the amount due under said lease, but have continued to occupy the premises described therein, claiming to hold under said lease. And the plaintiff says that if said lease was in force and effect as of the date of the bringing of this suit, and the defendants claim said agreement was in force and effect, then the defendants owe the plaintiff the sum of $337.50, together with interest thereon, according to the account hereto annexed marked ‘B,’ or in all the sum of $347.62 Count ‘B,’ Peter Bros, to Harry Rosenberg. One, to use and occupation of property on Hermon St. at $67.50 per month from August 23,1922 to Jan. 23,1923, $337.50. Two, to interest on the several payments at six per cent $10.12, total $347.62.” On June 22, 1926, the jury brought in a verdict for the plaintiff in the sum of $406.69 and the case went to final judgment on August 2, 1926.
The presiding judge in the instant action admitted in evidence the pleadings in No. 25469, subject to the exception of the plaintiff; and subject to the plaintiff’s exception he also admitted in evidence the charge of the judge in case numbered 25469 which, in so far as it is material to the defence of res judicata, reads as follows: “These defendants
The case before us on the pleadings is between the same parties and concerns the same subject matter as is presented in counts numbered one and two in the declaration numbered 25469, with the difference that the claim or demand of the plaintiff in the last action covers a different period of time than does the claim or demand in the former action. The judgment in action numbered 25469, being upon a different cause of action than the demand of the plaintiff in the pending action, the burden of proof, on the defendant’s plea of res judicata at the later trial, was upon the defendant to establish by a fair preponderance of evidence that a material fact in the former trial, here the making or not of an oral contract, was actually determined or directly in issue in the former trial and is again a material issue in the pending litigation and trial. Foye v. Patch, 132 Mass. 105. Ransom v. Boston, 196 Mass. 248. Harrison v. Fall River, 257 Mass. 545. The plaintiff
. The error in admitting in evidence the pleadings in the action numbered 24571 evidently was attributable to the reliance of the judge upon the unintentional misstatement of the attorney for the defendants, not then contraclicted by the attorney for the plaintiff, that that case went to judgment. In consideration of the indisputable fact that the same issue was decided adversely to the plaintiff in action No. 25469, which went to final judgment, we do not think there should be a new trial because of that error. It follows that the judge ruled rightly and the entry must be, exceptions overruled.
So ordered.