67 Pa. Super. 255 | Pa. Super. Ct. | 1917
Opinion by
The defendant appeals from the order of the court below making absolute a rule for judgment for want of a sufficient affidavit of defense. The statement of the plaintiffs averred, in substance, that the plaintiffs were manufacturers of cigars in the City of Reading, that
' The sum to be paid by.the party in default is in the agreement called a penalty, but that is not conclusive. “The question......is to be determined-by the intention of the parties, drawn from the words of the whole con
The contention of the appellant that the failure of the plaintiffs to present their claim for damages in the equity proceeding brought by the present defendant against the plaintiffs, in the Court of Common Pleas No. 1, of Philadelphia County, estops them to now assert this claim, and that the decree in that case, dismissing the bill, without more, is res ad judicata of this controversy, is without merit. That bill in equity was filed by this defendant, he sought to have the present plaintiffs restrained from selling the product of their own factories within the territory embraced by the contract with which we are now dealing, The relief which he prayed for was an injunction restraining the plaintiffs from selling in that territory, and that they be required to account for the sales of cigars made by plaintiffs within that territory and that the court state an account of the damage sustained by this appellant by reason of the sales so made. This was not a bill seeking a general accounting between the parties, the primary purpose of the bill was to restrain the plaintiffs from selling within the territory and, as an incident to the principal purpose of the bill to recover damages resulting from the sales so alleged to have been improperly made. The answer of the plaintiffs did not pray for affirmative relief and the court did not pass upon the question whether they were entitled to have such relief. The facts as found by the' court in that case must be regarded as res adjudicata. Those facts conclusively determine that these plaintiffs had not violated this contract; and that they had only notified this defendant that they, the plaintiffs, would no longer
Tbe judgment is reversed with a procedendo.