Tibbetts v. Shapleigh

Clark, J.

The question is; whether the Massachusetts judgment is a bar to the defendant’s set-off. To constitute a bar, it must operate either as an estoppel, or as a merger of the defendant’s claim in the judgment. A judgment is an estoppel upon parties and privies. The Massachusetts judgment Avas recovered in an action brought by the defendant against one of the plaintiffs, Joshua S. Smith, and the account upon which it was founded embraced substantially the items of the plaintiffs’ specification and the defendant’s set-off, in controversy in the present suit. None of the plaintiffs in the present action, except Smith, were parties to the Massachusetts suit, and consequently the judgment can operate as an estoppel only between Smith and the defendant, because the other plaintiffs, not being parties to the suit, were not bound by the judgment. Neither can the judgment operate by way of merger as to any of the plaintiffs except Smith, for the reason that they were all residents of Maine or New Hampshire, and none of them were joined in that action; and by statute in Massachusetts a judgment recovered against one joint contractor in such cases is no bar to an action against the remaining joint contractors. Mass. G. S., c.

126, ss. 13, 14, 15. The same principle is recognized in this state.

Olcott v. Little, 9 N. H. 259. An unsatisfied judgment against one joint promissor is no bar to a subsequent suit against the remaining eo-promissors, who at the time of the recovery of the judgment were without the jurisdiction, so that no service could be made upon them.

The Massachusetts judgment can operate as a bar to the defendant’s set-off against Smith only either by way of estoppel or merger; and if the plaintiffs can interpose that judgment in bar of the set-off in this action, it is because Smith is one of the plaintiffs. If the defendant is estopped by the judgment, the plan tiff Smith is *491 also estopped by it, because he was a party to it, and because estoppels are mutual. If the defendant’s original claim was extinguished and merged in the judgment, so was the claim of the plaintiffs so far as Smith is concerned, because it was adjudicated in the same suit. But estoppels may be waived, and Smith, having himself repudiated and waived the Massachusetts judgment, is estopped to set it up in bar of the defendant’s set-off.

Wheelock v. Henshaw, 19 Pick. 841 , 845 ;

Thurlough v. Kendall, 62 Me. 166 ;

Kilheffer v. Herr, 17 S. & R. 319. Smith and his co-plaintiffs, disregarding the Massachusetts judgment and treating it as a nullity, attempted to recover in this action claims which were adjudicated in that suit. The defendant tendered an issue upon the merits, and the cause was heard upon the facts by the referee. By their pleadings both parties have waived the Massachusetts judgment, a.nd Smith, by insisting that it is invalid, is estopped to claim that the defendant is estopped by it. A party is estopped to make an objection inconsistent with his cause of action. Big. Est. 542. If a party pleads a fact which he might be estopped to plead, and the other party takes issue on the fact instead of relying on the estoppel, and the jury find the truth of the fact, judgment may be rendered accordingly without regard to the estoppel. Com. Dig., Est. E. 10. In this case there is an estoppel against an estoppel which sets the matter at large. The defendant is entitled to judgment for the amount found due on the set-off by the referee.

Case discharged.

Blodgett, J., did not sit: the others concurred.