71 N.Y.S. 579 | N.Y. App. Div. | 1901
Lead Opinion
On the 1st day of February, 1900, the defendants, as parties of the first part, entered into a written agreement with the plaintiff, as party of the second part, reciting, among other tilings, that “ whereas the said parties of the first part are desirous of securing the advice, knowledge and experience of the said party of the second part, together with the use of his name, &c.; now, therefore, this agreement witnesseth that, for and in consideration of the payment to the said party of the second part for the rest of his natural life,
But it is suggested that this question is res adjudicata as to the plaintiff; that the original recovery was for wages under the contract ; that a second action was brought for damages for breach of the contract, and that the third action, being for a breach of the same contract, is barred by the former judgment. While it is not to be questioned that a former adjudication of the same question between the same parties for the same cause of action would constitute a bar to the present action, this rule, although a salutary one, is of a technical character, and a case must be brought strictly within it to give it effect. (Secor v. Sturgis, 16 N. Y. 548, 560.) This is a Municipal Court case, and in these courts the pleadings may be, and usually are, informal; and with a view 'to substantial justice courts of review have attached far more consequence to the conduct of the parties, and the proofs made by them upon the trial, than to their allegations. (Campbell v. Butts, 3 N. Y. 173,175; Code Civ. Proc. § 3063.) The judgment now before us was rendered upon the evidence in the former trial, and the pleadings were oral and informal, the return of the learned justice reciting that “ on the 8th day of August, 1900, the plaintiff appeared by John H. Webster, his attorney, and complained of the defendants for breach of contract, and that the defendants appeared by Darlington & Jenkins, their attorneys, and- answered said complaint. Defendants plead that the judgment for services in the judgment of July 20th on the contract is a bar to all further recovery under the claim, which pleadings were filed, and the said action was thereupon adjourned to the 29th day of August, 1900 ; that on the said 29th day of August, 1900, the parties again appeared in person and by their respective counsel and proceeded to the trial of said action, before me, without a jury, and agreed that the action be submitted on the testimony taken on
It is evident from this that the contract was not merely oné of employment, which could be terminated by the so-called discharge of the plaintiff; it was a continuing contract for the use of the name of the plaintiff in carrying on a business which he had estab
It is certain, therefore, that the only breach of the contract which has been before the court, either in the first, second or third action, is the breach of the contract to pay the sum of fifty dollars monthly. There has been a recognition of the contract as an existing instrument, controlling the relations between the parties, and the second" •action, like the present one, was merely for an installment then due ; it was in the second case “ for services from the 22nd of May to the 22nd óf June,” and in the present action it is for services from the twenty-second of June to the corresponding day in July, and beyond this there has been no adjudication. The defendants are still making use of Mr. Seed’s name in their business; they have had all of the advantages of a smooth transition of their business from the original ownership of the plaintiff to the present time, and it is hardly to be doubted that a court of equity would protect them in the use and enjoyment of the name and good will of Mr. Seed in its relation to the business of these defendants, under the terms of the contract, if the plaintiff should undertake to make use of it in another employment. The defendants have not shown affirmatively that any other issue has been tried or determined; the former judgment was not introduced in evidence and is not in the record. The only evidence before us of a former trial is found in the stipulation in reference to the use of the evidence and in the informal pleadings of the defendants that a former judgment for. services was a bar to the present action. This is certainly an intangible foundation on which to apply the rule of res adjudieaía, for it must be regarded as the established law of this State that a judgment is not conclusive in a second action unless the same question was at issue in the former suit, of which the court had competent jurisdiction, and the subsequent action is between the same parties or their privies. (Reynolds v. Ætna Life Ins. Co., supra.) The controlling issue in the second action was whether the sum of fifty dollars for the month between May twenty-second and June twenty-second was due and had not been paid; that in the present action was whether a like sum was due and unpaid for the month between June twenty-second and
In Johnson v. Meeker (96 N. Y. 93), instructive upon the principle here involved, the court say (p. 99): “We think the former-recovery was no bar to the present action. The recovery in the 'former action was for six months use of the barge which was due at the time, and no recovery could have been had for the four installments which subsequently became due. As the claim in this action was not due at the time of the commencement of the former, it is not apparent how it can be barred thereby. The claim here is distinct and different from that for which the former recovery was obtained.”
In Webb v. Buckelew (82 N. Y. 555, 559) the court, after discussing the justification for making judgments conclusive evidence or a bar to further litigations between the same parties, say that “ without such actual determination on the merits, evidenced by a record which cannot be contradicted, the reason of the rule does not apply, and the evidence ceases to be effective.” In the case now before us the matter relied irpon as res adjudicata is not evidenced by a record of any kind, and, as we have pointed out, the issues were different upon each trial, though arising under the same general contract. (See Secor v. Sturgis, 16 N. Y. 548, 554, 558 ; Campbell v. Consalus, 25 id. 613, 616, and authorities there cited; Griffin v. Long Island R. R. Co., 102 id. 449, 452; House v. Lockwood, 137 id. 259, 269 ; Zimmerman v. Erhard, supra; Unglish v. Marvin, 128 N. Y. 380, 386; Beach v. Crain, 2 id. 86, 96.) In the latter Case the court say : “ Bqt the evidence in both actions may be in part the same; yet the subject matter essentially different, and in such case there is no bar. For example, if money be awarded to be paid at different times, assumpsit will lie on the award for each sum as it becomes due. So,- on an agreement to pay a sum of money by instalments, an action will lie to recover each instalment as it becomes due, * * * yet in each of these examples the evidence to support the different actions is in part the same.” (See Reformed Protestant Dutch Church of Westfield v. Brown, 54 Barb. 191, 199.)
„ The judgment appealed from should be affirmed, with costs.
Goodrich, P. J., and Sewell, J., concurred; Jenks, J., concurred in result.
Dissenting Opinion
I would have little if any difficulty in agreeing with the majority of the court as to the proper disposition of this appeal were the question of res adjudicada the only serious one presented. But there is another question on the merits to be considered not touched Upon in the prevailing opinion, the facts in relation to which are undisputed, and which has the effect not only of rendering the plaintiff’s judgment unfounded and unjust, but of multiplying similarly unfounded and unjust judgments in his behalf indefinitely in the future.
The written contract between the parties was executed on or about February 1, 1900. Under it the plaintiff went to work for the defendants devoting himself chiefly to the task of filling the filters. On the nineteenth of May he refused to work any longer and was discharged. ' Since then he has not worked at all for the defendants nor sought work elsewhere. He brought suit and recovered and received the wages due him at the time of his discharge. He then sued again, and again recovered, and that judgment has also been paid. The record does not disclose the pleadings in the second suit, but at the commencement of that trial the defendant’s attorney said, “ I would like to have my friend define the nature of the action brought by him, whether it is for wages due or whether it is
■ The contract, however, is entire, and the plaintiff cannot lawfully recover, except upon proof of full and complete performance. The executory portion of the agreement is as follows : “ That for and in consideration of the payment to the said party of the second part for the rest of his natural life, of the sum of six hundred dollars per annum, payable in equal monthly installments of fifty dollars, payable on the day of each and every month, the said party of the second part agrees. to and with the said parties of the- first part to give his advice and to lend his skill and knowledge to the said business so purchased by the parties of the first part so far as the same may be necessary or required to the benefit and advantage thereof.” The defendants did not purchase the business from the plaintiff, but purchased it from his grantee, the Hero Fruit Jar Company; and while it is true that the plaintiff’s name is used in the business, and the contract, among its recitals, mentions the defendants’ desire to use the name, that right is not conferred by the agreement. All, therefore, which the plaintiff expressly agrees to do for $600 a year is “ to give his advice and lend his skill and knowledge ” to the business. That both parties contemplated that the plaintiff would work, as he actually did work, from the time the agreement was executed until he ceased and refused to work, viz., at filling the filters, is beyond doubt or question. The defendant Johnson testified as follows: “ Q. What was this plaintiff expected to do in your business in regard to skill, knowledge and advice? A. Skill, as I understood, and as I believe that Seed understood it, whát we both understood, that it required ■skill to fill these filters, and he claimed, that he was the most skilled
The parties differ as to whether or not the plaintiff was discharged . when he refused any longer to fill the filters on the day in question. The defendants say he was discharged but he denies it. But he never went back again, never filled a filter after May 19,1900, and. the judgment which he has recovered is based on the theory that he is under no obligation to work for the defendants or to do or offer to do anything in or about their business, but is entitled with-' out such work or offer to receive from them an annuity of $600 a year for the rest of his natural life. Manifestly the matter of “ advice ” between parties who are at law with each other monthly is intangible and valueless as a business asset. But the practical physical aid which the plaintiff contracted to render to the defendants’ business as a result of his skill and experience appeal’s to have been regarded by both parties as the chief consideration for the defendants’ promise to pay; but even were it a minor consideration, so long as it was substantial and fairly did enter into the reasons which prompted the promise of a large life annuity, when the plaintiff refused to furnish this aid the contract was broken and the defendants’ obligation to pay ceased. If the discharge was without just cause the plaintiff would be entitled to damages to be recovered in a single action. But I know of no principle of law which permits him to recover the monthly stipend for services
The conclusion that the work which the plaintiff actually did until May 19, 1900, was purely voluntary is wholly inconsistent with his testimony that he made the contract because his skill and experience in filling the filters quickly was required in the business, and that by the word “ skill ” in the contract he meant to confer the promise of that facility. If it be true that he was “ sick and ill ” on the nineteenth of May, as he says, and, therefore, quit work at three o’clock in the' afternoon, he should have gone back or at least offered to go back when he felt better. The defendants’ promise to pay this large annual sum to the plaintiff for life should not he treated as a gratuity, for which the plaintiff should be required to do nothing except to bring a monthly law suit. The practical construction which the plaintiff’s conduct placed upon the contract should be given due weight, especially in view of the testimony on both sides that it was in accord with the understanding of both; and the judgment should be reversed in the interest of justice and fair dealing.
Judgment of the Municipal Court affirmed, with costs.