89 A. 903 | Conn. | 1914
In the Superior Court the plaintiff had judgment for a balance which he claimed to be due from the defendant for insurance premiums. The action was brought on the common counts with a bill of particulars showing a balance of $623 to be due in August, 1908. The defendant pleaded three defenses: (1) that while the balance shown was due at the time indicated, it was then agreed between the parties that the plaintiff should cause certain policies which were then in force to be cancelled, and that any rebate which he might receive upon such cancellations should be applied in reduction of such balance; (2) that it was agreed between the plaintiff and the defendant and one Shares, the defendant's president, that the amount remaining due should be transferred to the personal account of said Shares, and that he should be accepted by the plaintiff as his debtor and the defendant discharged; (3) that these matters had been adjudicated and decided in the defendant's favor in a cause tried in the Superior Court wherein this defendant was plaintiff and the present plaintiff was defendant, said cause being The Cheshire Brass Co. v. Wilson, which was appealed to this court and is reported in
The finding of the court is that the balance of $623 was due to the plaintiff after the cancellation of the policies referred to in the first defense had been made and the unearned premiums had been credited to the defendant; that there was no agreement that the defendant should be discharged from liability for said *121 balance and the same charged to its president, Shares; and that these matters were not adjudicated in the suit of Cheshire Brass Co. v. Wilson. The defendant admits that these findings are conclusive against it, unless the court erred in holding that the matters set up in the first two defenses were not res judicata as set up in the third defense. This ruling of the court is assigned for error.
If these matters were finally determined in favor of the defendant in the other action between the parties, that adjudication was conclusive as between them as to those matters, and the same cannot be again litigated between them. To render the judgment thus conclusive, it must appear by the record of that suit, or by extrinsic evidence consistent therewith, that the particular matters sought to be concluded were necessarily tried and determined therein. Supples v. Cannon,
The record in that case, including the finding for appeal, memorandum of decision, and draft-finding, are made a part of the finding in the present case. The judgment-file states that the issues were found for the defendant, the present plaintiff. In the absence of evidence to the contrary, this finding of the issues for the defendant means that all the issues were found in his favor. Perkins v. Brazos,
It is apparent from the record, that a determination of the amount due Wilson in August for back premiums, either before or after the allowance for unearned premiums, was in no way necessary to, or involved in, the decision of the question whether the defendant — the present plaintiff — was guilty of the torts alleged respecting policies issued two or three months after the alleged novation. And this being so, the question whether there was a novation as to that balance was immaterial to the real issue litigated and therefore was not necessary to its determination. Had the plaintiff in that action, under General Statutes, § 763, requested the court to specially set forth in its judgment the facts upon which it was founded, the only facts proper to have been included in the judgment-file would have been the three just stated. These were the "adjudicated facts, found under the responsibility of the exercise of judicial duty and forming the basis of the judgment rendered. Facts found upon which the judgment is not based, which are in no way necessary to it, need not appear on the record, and when placed there form properly no part of it." Broughel v. Southern NewEng. Tel. Co.,
It appears, however, that in the draft-finding, filed by the Brass Company in that action with its request for a finding with a view to an appeal, there was a paragraph stating that the amount due Wilson was $623 before the rebates were credited, and that there was the novation which is now claimed. These two paragraphs were marked in the margin "proven," by the trial judge. It is insisted by counsel for the appellant that we are to take this as the real finding of the judge upon these questions.
Where paragraphs in a draft-finding, stating facts which would be proper in a finding on appeal, have been marked as the rules require and marked "proven," and no other finding relative to such facts has been made, we have held that such paragraphs will be treated as a part of the finding of the trial judge, and that it is unnecessary and improper to proceed in this court to have the finding so amended as to embody those paragraphs. We have never held that where there are paragraphs so marked in the draft-finding by the trial judge and in the finding which he makes for the purposes of an appeal he finds the facts directly contrary to the statements in such paragraphs, the latter are to be taken as the finding of the judge. In the absence of anything to indicate the contrary, the statement of the judge in the finding signed by him is to be treated as his finding as to such questions of fact. In the case of such inconsistent findings it would be the duty of the party moving for an appeal to request a correction to remove the inconsistency and to proceed to secure it. If, therefore, the matters now at issue *125 between the parties were adjudicated in the other action, it does not appear, and the court has not found, that they were there decided in favor of this defendant, but it would appear that they were there, as in the court below, decided in favor of the present plaintiff. But as these questions were not necessarily tried and determined in that action, the judgment in that suit, as held by the Superior Court, did not conclude the plaintiff from litigating them in the present action.
The assignments of error based upon the rulings of the court in excluding two questions asked of the plaintiff on cross-examination have not been pressed. The rulings were clearly correct.
There is no error.
In this opinion the other judges concurred.