59 Colo. 66 | Colo. | 1915
delivered-the opinion of the court.
Defendant, The Central Electric Company, is a foreign corporation under the laws of Illinois. By the terms of the written contract in suit, plaintiff, J. A. Savage, engaged to represent it for a period of one year from February 1st, 1910, as a traveling salesman in Colorado and other western states, at a salary of $2,700, payable $225 each month, and necessary traveling expenses, agreeing to give the exclusive use of his services to the company, and not to be directly or indirectly interested in any other business of any nature, during the contract period, without the company’s knowledge and consent.
’ September 24th, 1910, plaintiff brought this action against defendant upon that contract to recover salary and expenses for the month of August, 1910. A default judgment was rendered against defendant, who thereupon appealed to the District Court. Plaintiff interposed a motion in the District Court to dismiss the appeal, challenging defendant’s capacity to defend for non-compliance with the Colorado statutes relating to foreign corporations, which was overruled.
While this cause was pending in the District Court a judgment was rendered in favor of plaintiff in the County Court in an action previously begun upon the same contract in a justice’s court on August 16th, 1910, without plead-, ings, for salary and expenses for the month of July, 1910. That judgment was set up by plaintiff in a supplemental complaint filed in the District Court, as res judicata of the present controversy. Defendant, by answer to the com
It is now contended by plaintiff that the answer contains no sufficient plea of breach, of contract. No attempt was made below, either by motion or otherwise, to make the answer more specific, definite and certain. Its averments were put in issue, and plaintiff made no objection to the introduction of evidence by the defendant tending to prove the claimed breach, but, on the contrary, offered evidence at length in denial thereof. The sufficiency of the answer to present the question of a breach of the contract is urged for the first time in this court. The pleading was treated by the parties as presenting that issue, and trial had on that theory, and therefore any insufficiency of the pleading in this respect must be regarded, upon review, as waived. In other words, a party who tries a cause on the theory that a given matter is in issue, when defeated on that proposition, will not thereafter be heard to say there was no such issue. D. T. & Ft. W. R. R. Co. v. Smock, 23 Colo. 456, 48 Pac. 681.
The question most seriously urged for reversal arises upon the plea of res judicata. It is plainly the theory of plaintiff, in bringing an action for money due under the contract, rather than for damages for breach thereof, that it is in the category of contracts which admit more than one cause of action. He urges that the judgment in the former
The answer to the supplemental complaint admitted, the previous action upon the contract and judgment therein, but denied all other allegations, thus necessitating proof of them. Where, as here, sufficient facts to constitute res judicata do not appear from the record, the burden is upon the one invoking the plea to establish it by competent proof. Grand Valley Irr. Co. v. Fruita Imp. Co., 37 Colo. 483, 86 Pac. 324. This the plaintiff wholly failed to do. For this reason alone he could have no relief 'under the plea. The ’decision in the case of Ornauer v. Penn. Mutual Co., 52 Colo. 632, 123 Pac. 650, is conclusive authority for this view. There the contract provided that in case of Ornauer’s resignation, death or removal, without having violated any of its terms and conditions, he would be entitled to commissions on renewal premiums paid-on certain insurance policies of the company, which he had procured as its soliciting agent. The first action was brought by the. agent,' after resignation, to recover commissions on renewal premiums, .in which he secured judgment. The answer was a general
“As applicable to these cases, the rule res judicata is that where the second action between the same- parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the judgment was rendered, and not as to other matters which might have been litigated and determined. Cromwell v. County of Sac, 94 U. S. 351 (24 L. Ed. 195) ; Davis v. Brown, ibid, 423 (24 L. Ed. 204) ; Russell v. Place, ibid, 606 (24 L. Ed. 214) ; 2 Black on Judgments, sec. 614 ; 24 Ency. 784 ; Grand Valley I. Co. v. Fruita Imp. Co., 37 Colo. 483 (86 Pac. 324) ; Hickey v. Anheuser-Busch Brewing Ass’n, 36 Colo. 386 (85 Pac. 838) ; Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013).
So that in all cases where it is sought to apply the es-° toppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action between the same parties, the inquiry must always be as to the issue actually litigated and determined in the original action, not what might have been thus litigated and determined in the original action, for it is only as to the former that the judgment is conclusive in another action. Each of the cases instituted by plaintiff grew out of the same contract, but the demands or causes of action are different.”
' From this it is manifest that it was incumbent upon the plaintiff to have shown by evidence, that fact not appearing upon the record, that the issues determined in the first suit were the same as those presented in this one. This the plaintiff did not even attempt to do.
Upon conflicting evidence the trial court found that defendant was engaged solely in interstate commerce within this state, and such finding will not be disturbed. The act of 1911, chapter 102, does not apply to those foreign corporations engaged solely in interstate commerce. Herman Bros. Co. v. Nasiacos, 46 Colo. 208, 103 Pac. 301 ; International Trust Co. v. Leschen & Sons R. Co., 41 Colo. 299, 92 Pac. 727. Even if it may be said that plaintiff could properly raise this question by motion to preclude defendant, instead of by formal plea, a matter of doubtful import, still clearly under the evidence adduced the motion was properly denied.
Other errors assigned are not of substance, and we deem it unnecessary to discuss or consider them. From a careful reading of the record we conclude that it abundantly supports the judgment, which is accordingly affirmed.
Judgment affirmed.