73 Mass. 499 | Mass. | 1856
This is an action of tort, in which the plaintiff alleges his possession of a close at East Boston, a wrongful entry thereupon by the defendant, expelling the plaintiff therefrom, and holding him out to the time of the commencement of the suit.
The plaintiff’s claim of title was upon a lease for five years, made to him by the defendant, of a wharf at East Boston, with a patent planing machine upon it, of which the defendant was the patentee, together with a steam engine, boiler and apparatus for carrying on the same.
The defendant, by his answer, admitted the lease by himself to the plaintiff; but averred that there was a stipulation contained in it, on the part of the lessee, that if he should, during the term, make or suffer any strip or waste upon the premises, the lessor should have the right to enter and take possession of the same, and expel the lessee therefrom; and that the lessee did so make and suffer strip and waste of the premises, whereupon the defendant did enter and expel the lessee, as he lawfully might.
This the defendant offered to do, by giving in evidence a verdict and judgment in his favor in a former suit in another county, in which the present defendant was plaintiff, and the present plaintiff was defendant. It was an action of contract on the same lease hereinbefore mentioned, in which there was a great number of stipulations and covenants on the part of the lessee, upon several of which the lessor, in his former action, had assigned breaches, and for which he claimed damages. In his answer in that suit the defendant therein denied, generally and specifically, all the breaches alleged, and denied that he had committed any breach of the covenants in said lease, but said that he had faithfully and fully performed all his covenants. That case, it appears, went to trial on the issues thus formed, upon which, after a full hearing, the jury returned a verdict for one cent damages for the plaintiff.
The defendant’s counsel insisted that the question of the lessee’s having made strip and waste being assigned by the plaintiff in the former suit as a breach of covenant, and denied by the defendant, was a fact put in issue; and, there being a general verdict for the plaintiff, this fact was found to be true, it must be deemed in law to be conclusive between the same parties in this suit, and thus the fact, upon which the defendant founds his justification in this suit, is definitively established. The judge before whom this action was tried took this view of the law, and held that that verdict and the judgment thereon were conclusive in favor of the defendant, as proof of the strip and waste on which he relies for his justification in this action This is the point which we are called on to revise.
This decision, we apprehend, carries the doctrine of res judi cata somewhat beyond the line warranted by the authorities, and overlooks some of the limitations and modifications with
But this estoppel is attended with conditions and qualifications which must be strictly observed, without which it would sometimes operate harshly by excluding the truth. It must be an averment of a fact precisely stated on one side and traversed on the other, and found by the jury affirmatively or negatively, in direct terms, and not by way of inference. It is not necessary that the action in which it is found, and that in which it is relied on as an estoppel, should be of the same kind, or for the same cause of action. If a question upon the execution or validity of a deed in fee be put in issue in an action of trespass, and expressly found by the jury, such verdict and the judgment upon it may be relied on as conclusive evidence of such fact, on the trial of a real action or writ of right, between the same parties, for the same estate. It has become a fixed fact between these parties for all purposes.
The principle of this rule, the grounds on which it is founded, with its proper limitations, are very satisfactorily stated in Outram v. Morewood, 3 East, 346. It was recognized in this commonwealth, though the previous verdict and judgment in that case were not such as to satisfy the rule, that the verdict must be directly on the fact and not by way of inference, in Davis v. Spooner, 7 Pick. 147.
Taking these to be the settled rules on the subject, the court are of opinion that the ruling of the judge in the present case, that the verdict and judgment in the former case were conclusive evidence for the plaintiff in the present case, cannot be supported. It is true that the question of strip and waste was in issue in the former case, because that breach was assigned, and traversed in the answer, and therefore was in issue, and might have been tried and passed upon. But many other breaches were assigned, having no relation to waste; and therefore a general verdict for the plaintiff, with nominal damages, left it wholly uncertain, without other evidence, whether the fact was actually submitted to the jury, and passed upon by them,
The court are therefore of opinion that fhe ruling of the judge, that the evidence in question was conclusive, was incorrect.
New trial ordered.
A new trial was had at March term 1857, before Merrick, J., at which the plaintiff admitted that the issue upon the covenant against strip and waste was one of the questions litigated bj the parties upon the trial of the former action, and that some evidence was introduced by the plaintiff and defendant in proof and disproof of the allegation of strip and waste, and also evidence of the other breaches alleged in the declaration in that case.
The judge ruled that the judgment in the former action, together with the facts now admitted by this plaintiff, were a bar to this action. A verdict was returned for the defendant, and the plaintiff alleged exceptions, which were argued at March term 1858, and Overruled.