Stapleton v. King
40 Iowa 278
Iowa
1875
Check Treatment
Beck, J.

I. The proceedings aud judgment in the prior cause between the same parties, that are now before us in this 1. RES ADJUDICATA: contract: practice. action, were admitted in evidence, together with judgment and opinion of the court rendered upon in this court. See 33 Iowa, 28. The judgment in that action is pleaded in- this by both parties. The plaintiffs claim that all questions arising upon the contract set up in their replication, were decided in their favor, and are res adjudicatae, while the defendants insist that the defense of a new contract, pleaded by them in this action, was decided in their favor in the former suit, and the existence of that contract cannot now be questioned. The referee sustained the claim of the plaintiffs.

The answer of the defendants in the former suit set up the defense of the new contract substantially as it is pleaded in this action. There was a verdict and judgment thereon for plaintiffs. The claim of plaintiffs in that action was for the value of the wool for certain years. The verdict was for less than the amount of plaintiffs’ claim. Defendants insist that the verdict is consistent with the finding of the jury for defendants, as a part of the wool, which defendants, under the new contract as pleaded by them, were bound to deliver, had not, in fact, been received by plaintiffs. But the ready and *283effective answer to this position is tliis: tbe defense went to deny plaintiffs’ right to recover at all on the contract sued upon. It sets up an abrogation of that contract by the substitution of a new one. Hence, if the jury had found the issues involved in this branch of the case for defendants, no verdict, in any sense, would have been returned for plaintiffs. It follows that the jury found against the defendants upon the issue of the new contract raised in. the answer; and as the same defense is pleaded in almost the same words in this action, which is upon the identical contract sued upon in the former, we have no difficulty in concluding that the matters involved therein must be regarded as res adjudieatae.

II. We have no more difficulty in determining that all matters involved in the receipt or contract set out in plain-2 ._._. : tiffs’ replication, are also res adjudieatae. It was held by this court in the prior case that the instrument was a contract in its nature, and could not be explained, contradicted, or varied by parol evidence. See 33 Iowa, 28. The conclusion, therefore, of the referee, to the effect that, under the former adjudication of the contract, defendants could not set up any claim for damages by reason of the diseased condition of the sheep, is correct. The question whether the instrument was a receipt or a contract was before the court in the former case, and it was found to be a contract. The identical question is in this case and the former decision of this court holding the instrument io be a contract, and incapable of being explained or varied by parol evidence, mmst be followed.

The finding of the referee upon the issue whether subsequently to the execution of this contract another agreement was entered into, whereby plaintiff agreed to take back the sheep, is not in conflict with the evidence, and cannot be disturbed.

III. The defendants offered to introduce the testimony of certain jurors, who sat in the first case, to prove that the 3_. evidence. finding upon that trial was in fact for defendants upon the issue involving the new and substituted contract. This evidence was rejected, and the ruling is assigned as error.

*284Upon the question of the identity of the matters involved in the respective suits, if the records do not show such identity, or it is left in uncertainty by the records, parol evidence is admissible. * But evidence of this character cannot be heard to contradict the record. 2 Phillips on Ev., (Oowen & Iiill and Edwards’ notes), pp. 21, 124. As we have seen, the issues in the former case were found for plaintiff as shown by the record. The existence of the new contract was in issue, and a verdict for plaintiffs necessarily involved the finding by the jury that no such contract was entered into between the parties. A contrary conclusion would require us to hold that the cause was not tried upon the issues presented in the pleadings, and that the jury were permitted by the court to give a verdict for defendants upon a contract not declared on by the plaintiff. We can entertain no such presumptions against the regularity and correctness of judicial proceedings. The evidence offered by defendants in effect tended to contradict the record of the first cause, and was, therefore, properly excluded.

IV. The objection to the joinder of the causes of action upon the several mortgages in one action, we think was not 4. PLEADING practice: mortgage well taken. The mortgages are but the securities . ° . upon the contract and incidents thereto. The action is to give plaintiffs the relief to which the law entitles them, under the contract; the foreclosure of the mortgages is a part of that relief. Why mete out the relief in separate actions? And what prejudice results to defendants in being required to defend against the respective mortgage, executed by each in one action? Relief may be granted without prejudice to either defendant, in one action. Equity, abhorring a multiplicity of suits, -will never send a suitor from its bar to bring another action, when relief may be granted, fully and completely, and without injustice to others, in an action wherein it has acquired jurisdiction of the parties and the subject matter in controversy. We know of no provision of our Code in conflict with this principle.

■ V. The referee found, as matters of fact, that the wool for which plaintiff is entitled to recover was of the value of fifty *285cents per pound when it should have been delivered, and

5. damages: contract. when demanded it was of the value of sixty-two and one-half cents, which was the highest market' price up to the day of trial, and that there was no unreasonable delay in making the demand or in bringing this action; and that the sheep were worth, when denlanded, $3.37£ per head, and the same price when they should have been delivered. These findings, we think, are not in conflict with the evidence. As a conclusion of law he found that plaintiffs were entitled to recover for the sheep at the rate of $3.37-jj- per head, and for the wool at the rate of 62-g- cents per pound. Defendants complain of the referee’s conclusion as to the price allowed for the wool, and insist that it is erroneous.

"When the piece of property contracted to be delivered has been paid for prior to delivery, the plaintiff may recover the highest market price prevailing between the day fixed for delivery, and the day of bringing-suit, if the action has not been unnecessarily delayed. Cameron v. Folsom, 2 Iowa, 102; Davenport v. Wells, 3 Iowa, 242. The wool for which plaintiff is entitled to recover was paid for under the contract by the delivery of the sheep to defendants. The highest market- price was upon the day of the demand, before suit was brought, which, as we have seen, was not unreasonably delayed. The referee correctly based his estimate of damages upon that price, while there may be, under the cases just cited, a dispute as to the correctness of the rule of damages contained in the announcement of his conclusion of law upon this point.

The foregoing discussion disposes of all objections raised by defendants to the judgment of the District Court.

AFFIRMED.