22 F. Cas. 1166 | U.S. Circuit Court for the District of District of Columbia | 1838
Lead Opinion
On the 2d of December, 1831, the writ in the first suit was issued, returnable to December term, 1831. The declaration contained two counts.
1st. Indebitatus assumpsit for $2,765, for the use and hire of the steamboat Franklin.
2d. Quantum meruit for the hire and use of the same boat; and that they deserved to have therefor the sum of $2,415.
The jury found a verdict for the plaintiffs for $2,415, with interest from the 6th of February, 1832; and judgment was rendered accordingly.
The bill of exceptions taken at the trial in November term, 1833, shows that the plaintiffs claimed, and the Court instructed the jury, that if they believed certain facts therein stated, the plaintiffs were entitled to recover at the rate of $35 per diem from the 20th of November, 1831, to the 6th of February, 1832, both days inclusive.
Upon a writ of error, the Supreme Court of the United States, at January term, 1835, reversed the judgment, and ordered a venire de novo, because it appeared by the record “ that the jury was instructed to give damages to a time long posterior to the institution of the suit,” the writ having issued on the 2d of December, 1831, and the defendant having appeared on the 1st Monday of December, 1831, and laid a rule on the plaintiffs to declare.
This error was not noticed in the Court below, or rather, as it seems, the record did not correspond with the facts, the parties having agreed, after the 7th of February, 1832, to docket a cause by consent; but as a writ had been issued on the 2d December, 1831, for a cause of action which was abandoned, the entries were made in the suit thus commenced on the 2d of December, instead of docketing a new suit according to the agreement of the parties.
While the same cause was pending in the Supreme Court upon the writ of. error, to wit, on the 24th of December, 1834, the plaintiffs sued out a new capias ad respondendum against the defendant William A. Bradley ; and on the 8th of January, 1836, filed their declaration thereupon, precisely in the same words as those of the declaration in the former cause.
To this new declaration, the defendant, on the 7th of March, 1836, pleaded, that before the issuing of the said writ in this cause, namely, at December term, 1831, the plaintiffs “ impleaded the
To this plea, the plaintiffs replied, in substance, that the writ in the former case “issued prior to the rising of the cause of action in this case mentioned,” and although the declaration in that cause did set forth the same cause of action as is set forth in the declaration filed in this case; yet, by the final judgment entered in that case, and which still remains in full force, it was adjudged that the said cause of action, not having arisen until after the issuing of the said writ, the evidence given to the jury in that case was improperly admitted ; and the judgment of the said Circuit Court was, on that ground, reversed, “ wherefore the plaintiffs say, that they ought not to be precluded from recovering in this action, by any thing in the said plea contained.”
To this replication it is understood that the defendant demurs, and the plaintiffs join in demurrer.
The criterion by which to decide whether two suits are for the same cause of action, is, whether the evidence, properly admissible in the one, will support the other.
The Supreme Court has decided that the evidence which is admissible, and will, as we suppose, support the present action, was not admissible in, and, therefore, could not support, the former action. And it is equally clear, that so much of the evidence as might have been admissible in the former action, (namely, for the hire of the boat from the 20ih of November up to the 2d of December, 1831,) and which might have supported so much of the plaintiff’s claim, will not support the whole of the present claim.
I think, therefore, that the cause of action cannot in law be considered as the same.
Concurrence Opinion
concurred. Thruston,.!,, did not sit in the cause. Plea in abatement overruled.
Upon the trial of the general issue, the plaintiffs relied upon the same evidence which they produced on the former trial, (see the case reported in 9 Peters, 107, and 13 Id. 89,) and the defendant offered, and the Court again rejected, the same parol evidence to confine the contract to the time- the navigation of the river should not be obstructed by the ice, which was offered and rejected at the former trial; and the Court gave the same instruction, at the instance of the plaintiffs, which they had given before.
The verdict and judgment being for the plaintiff, as in the former suit, the defendant carried the cause again to the Supreme Court, where the judgment was again reversed, on the ground that the Court ought to have permitted the defendant’s parol evidence to be given to the jury. See 13 Peters, 89.
