White v. Savage

94 Me. 138 | Me. | 1900

Fogler, J.

This is an action on the case to recover damages for an alleged breach of a contract of bailment.

The defendants recovered judgment against the plaintiff in the Bangor municipal court for $25.80 on a writ containing an account annexed for items of merchandise ¿mounting to $25.80 and also a count among others, for “money had and received.”

Tn the present suit for damages the plaintiff alleges in his writ, and introduces a memorandum of contract tending to show that the goods for which the defendants recovered this judgment in the Bangor municipal court were not in fact sold to the plaintiffs by the defendants, but were consigned to him and left in his store “ on sale,” with the understanding that they should remain the property of the defendants and be accounted for when sold. He alleges that *143he was ready to account for all goods thus delivered to him and to return any goods unsold; that in enforcing their judgment against him the defendants took and carried away a large quantity of his goods; “and that in consequence of the contract of the defendants and its breach, he has been greatly damaged.” The presiding justice ruled that the judgment of the Bangor municipal court was a bar to the plaintiff’s action, that this action could not be maintained, to which ruling the plaintiff excepts.

There are insuperable objections to the maintenance of the plaintiff’s action.

In the first place it is not distinctly averred in the declaration nor shown by evidence that any of the goods in question alleged to have been consigned to the plaintiff remained unsold; nor is it expressly averred, even in general terms, that there had been any breach by the defendants of the alleged contract of bailment. Nor does it appear from the records of the Bangor municipal court, or from any other evidence in the case, that the judgment recovered by the defendants was necessarily based on the account for goods sold and delivered. For aught that appeal’s there may have been satisfactory evidence before that court that the goods described in the account annexed had all been sold by the plaintiff, and the judgment may accordingly have been rendered on the count for money had and received. In that event it is plain that the institution of the suit by these defendants and the enforcement of the judgment recovered in that action, would not have been in violation of the terms of the alleged contract of bailment, but only in affirmation of it, and the plaintiff would not be aggrieved.

It is immaterial that the judgment in that case was finally rendered on default. It appears from the record that this plaintiff was duly subjected to the jurisdiction of that court by appearing as the party defendant and' answering to the suit. He had full opportunity to present his defense and meet the case of the plaintiffs in that action by showing that the goods had not all been sold. If there was a contract of bailment in force between the parties at that time, the judgment by default operated as an admission that the goods had all been sold and that he was accountable for the full *144amount of the money received by him. Upon that issue the judgment of the Bangor municipal court would have been final and conclusive between the parties. Freeman on Judgments, § 256; Parks v. Libby, 90 Maine, 56.

But secondly, if the plaintiff’s declaration in this case could be construed to signify inferentially that some of the goods consigned to the plaintiff remained unsold at the date of the action in the Bangor municipal court, and that the contract of bailment set up by him was still subsisting at that time, if it be assumed that the judgment in that suit was based on the account annexed for goods sold and delivered, it is equally clear that the question of bailment raised by the plaintiff’s declaration in this case was directly involved and necessarily decided in the former suit in the Bangor municipal court, and that the judgment rendered in that action is a ban to the maintenance of this one. On the plaintiff’s theory that the defendants in this action sought to recover and did recover in the former suit for the articles charged in the account annexed as for goods sold and delivered to the plaintiff, when in fact they remained on sale and remained the property of these defendants under the special arrangement of the parties, it is manifest that proof of such a contract of bailment would have been a complete defense to the action. If the articles sued for were only consigned to this plaintiff to be sold by him as the property of these defendants, they were not “ sold and delivered to this plaintiff;” and if they were not “sold and delivered,” and the title did not pass, these defendants were not entitled to recover the price of them as for goods, sold and delivered. In the plaintiff’s view of the case the question of bailment was therefore necessarily involved and finally adjudicated in the former suit. The judgment rendered in that case is conclusive as to the relation of debtor and creditor between these parties, and as to the amount of the indebtedness. There is no suggestion of fraud or collusion, want of jurisdiction or error in law. That judgment remains unreversed and it cannot be collaterally impeached in the manner proposed. Sidensparker v. Sidensparker, 52 Maine, 481; Smith v. Abbott, 40 Maine, 442; Embden v. Lisherness, 89 Maine, 578; Morrison v. Clark, 89 Maine, 103; Parks v. Libby, 90 Maine, 56; Bigelow on Estoppel, 27.

*145In this view of the case, also, the judgment is not less conclusive because obtained by default after an appearance by tbe defendant. By submitting to a default, tbe defendant in tbat case admitted every material averment in tbe declaration and every ground upon wbicb a recovery was sought.

Tbe plaintiff cannot recover damages for tbe breach of a contract of bailment wbicb has been judicially determined to have bad no existence in fact.

Exceptions overruled.