11 S.D. 605 | S.D. | 1899
Answering the complaint in this action to cancel a bond for a deed and by way of counterclaim, the defendant charged plaintiff with a breach of the terms of such instrument, and alleged full performance on his part, but consented to a cancellation thereof upon the restoration of $1,100, which he had already paid, as a part purchase price of the premises therein described. In reply to the counterclaim, a former suit between the same parties was pleaded in bar, and, on this appeal from a judgment for the full amount claimed by defendant, plaintiff insists that the trial court erred in permitting the introduction of parol testimony to show what was really adjudicated at the earlier trial. The essential facts pertaining to the first suit, which was entitled “Peter Neys v. John C. Taylor,” are these: The summons is in the usual form for the recovery of money, and it is in the complaint alleged that the respondent Neys paid Si, 100 as part purchase price of the premises, and under the contract went into actual possession thereof, thus remaining' until appellant, Taylor, maliciously and fraudulently ousted both himself and family, although he had performed all that the contract required,
“The defendant moves the court to instruct the jury to return a general verdict in favor of the defendant, and against the plaintiff, for the following reasons: * * * The evidence shows that the plaintiff has never rescinded the contract mentioned in the complaint, and never tendered back to the defendant any compensation for the time while he had the premises, or compensation for the injury done the same, and has not offered to reconvey, and never did reconvey, his interest in and to the premises. The evidence shows conclusively that he still claims to have an interest in the premises in controversy under and by virtue of the contract mentioned in the complaint, and therefore he is not entitled to recover. The motion of the defendant to direct a verdict granted. •
“Gentlemen of the Jury: This case, as many other lawsuits, involves a question of law, and, as the court has stated to counsel in your hearing, the court is of the opinion that, under the facts in this case, the contract was, at the time the suit was brought, a subsisting contract, giving Mr. Neys, the defendant,
The judge before whom this cause was tried fully corroborated the foregoing; and testified to facts which conclusively show the theory upon which the verdict was directed to be “that the action to recover the $1,100 purchase money could not be maintained until after a rescission of the contract, and, as there was no proof or averment of its being rescinded on the part of the plaintiff, that the action was prematurely brought.” We think the decision amounts to a dismissal of the action for reasons not extending to the merits of respondent’s claim, as relied upon in this suit, and that extrinsic evidence was competent to show that the only question determined in the former case was respondent’s right to maintain his action at that time.
Of course, it would be vexatious, and contrary to the well-settled policy of the law, to permit repeated suits between the same parties, for the same subject-matter, resulting in more that one judgment, upon the merits of the same cause of action; but, before a prior judgment can operate conclusively as to a subsequent action, the matter in issue must have been determined upon the merits, and a judgment for costs, amounting to no more than a nonsuit, is not sufficient to constitute a bar. Haws v. Tiernan, 53 Pa. St. 192; Delany v. Reade, 4 Iowa, 292; Bridge v. Sumner, 1 Pick. 371; Harrison v. Wood, 2 Duer, 50; Howes v. Austin, 35 Ill, 396; Taylor v. Larkin, 12 Mo. 65.