Chapin v. Curtis

By a general demurrer to a declaration, nothing is admitted but some cause of action on some of the counts embraced therein, and the plaintiff can only recover, to the extent of the damage he proves to the court. A having agreed with C to carry passengers and freight from New York to California, the latter subsequently brought an action against A, for not fulfilling such agreement, embracing in the declaration several counts, some for negligence, some for false warranty, and one in trover. To this declaration A demurred, and thereupon judgment was rendered against him, and damages assessed at one hundred dollars. A afterwards brought his action against the defendant, who was liable with C for the payment of the freight and passage money, claiming that, having performed said agreement on his part, the defendant was liable for the payment of said money. The defendant having denied such performance and offered evidence to that effect, A claimed that all the facts in issue had been adjudicated, except so far as the recovery of said $ 100 went to prove the contrary, and that said judgment, in the former cause, was conclusive evidence of full performance, on his part, and that the defendant was concluded thereby. Held, that the judgment on said demurrer was not conclusive evidence of the full performance of said agreement on thé part of A. Much less did it prove the full performance on his part, of the contract, the breach of which was set out in other counts of said declaration, that were not passed upon by said court, in rendering such judgment. Á privy by representation, as an executor, administrator, or assignee, is bound by a judgment against his principal. How far a surety is bound by a judgment against his principal except in certain peculiar cases ? Qu.

This was a bill fox the foxeclosuxe of a moxtgage, brought by Mexrick W. Chapin against Fredexick Curtis. The cause was brought to the superior court for Hartford county, and referred to a committee, whose report embraced the following facts. The condition, annexed to the deed of mortgage, was as follows: “Whereas the said M. W. Chapin is agent for the steamer Hartford, which is about to sail from New York to California, and Joseph Curtis and C. C. Randall of Hartford, are about to send several persons passengers, and also divers freights in said vessel, to California, and it may be to some other place or places, and the said Frederick Curtis has agreed, and hereby does agree, to become responsible for the payment of the passage money of said passengers, and the freight moneys for said freights, to said Chapin; now therefore, if said Curtis and Randall, or said Frederick Curtis, shall, within six months from the sailing of said vessel, well and truly pay or cause to be paid, all and every of the sum or sums, of money, that is or may hereafter be due said Merrick W. Chapin, agent as aforesaid, and all freight money in like manner, for passage of said passengers and freight, as the said Curtis and Randall shall send or forward by said steamer Hartford, to California or elsewhere, on her now contemplated voyage, .then this deed shall be void, otherwise in full force and effect, as by said deed duly executed, acknowledged and recorded, ready in court to be shown, appears.” In the month of January, 1849, the plaintiff and others were the owners of a steamer, or propeller, called the “ Hartford,” then lying in the port of New York, which they were then and there fitting out for a voyage from said port of New York to San Francisco, in California. The plaintiff, M. W. Chapin, was the agent of the owners, and had the care of fitting out said vessel, and. of contracting for the transportation of passengers and freight, on board the same. Joseph S. Curtis and Corydon- C. Randall were about taking out a number of men, and also a quantity of machinery and other freight, for the purpose of establishing the business of assaying and stamping gold, in said San Francisco. Some negotiations were had between said Chapin and said Curtis and Randall, regarding the transportation of the men, machinery, and other freight, which negotiations terminated in a contract, by which said Chapin agreed to take out and transport from said New York to San Francisco, eleven men, including said Randall, who was to pay $250 for his passage, and his berth on board said vessel; the others to pay $225, except a boy named Eben, who was to pay $100, and it was further agreed that said Chapin should receive such machinery and other freight, as Said Curtis and Randall should put on board said vessel, at a stipulated price per cubic foot. The passage money, at the prices aforesaid, amounted to the sum of $2,375, and the freight on the machinery and other articles put on board, by the said Curtis and Randall, at the prices agreed upon, amounted' to the sum of $1,219.31. At this time it was the custom, in the city of New York» (where said contract was made,) that in voyages to California, the passage money should be paid when the berths were taken, and the freight money when the freight should be delivered to the shipper. But in this case, it was agreed between the parties, that the sums for freight and passages should be considered as cash, but that six months should be allowed for payment, and that a note to that effect should be given, which, however, was not given. Said Chapin insisted that security should be given before the vessel sailed» for the payment of said passages and freights,'and, in order to satisfy said claim, said Joseph S. Curtis and said Randall, applied to the defendant to furnish such security, and at their instance and request, the defendant executed and delivered the mortgage deed, described in the plaintiff’s bill. Said deed, with the condition thereto annexed, contained the entire contract of the defendant, and he had no interest in the contract of said Curtis and Randall, with the plaintiff", and was only guarantor, for their accommodation, of the payment of said freights and passage money. Said vessel sailed from New York for San Francisco, on or about the 20th day of February, 1849. On the evening before she sailed, the parties were all together, at the Astor House, in said city of New York, where it was agreed that said vessel should sail the next morning at ten o’clock, and said Randall then said that he would be on board with his troops at that time; but he did not come on board, and after waiting for him about two hours, and he not appearing, said vessel sailed without him, and after a passage of ten months and one-half, (viz., on or about the first day of January, 1850,) arrived at said San Francisco, and delivered her passengers, and also her cargo, in a damaged state. After the arrival of said vessel at San Francisco, and before the commencement of this suit, a demand was several times made on the said Joseph S. Curtis, by the plaintiff, for payment of said passages and freight, and the principal objection, which he made to such payment, was that a passage to Randall ought not to have been charged, or that some deduction or allowance ought to be made therein. The bill in the present case was duly served on the defendant, and returned to the superior court, in and for the county of Hartford, at its September term, 1850, and was by said court regularly continued, and before the next succeeding term of said court, viz., on the 16th day of January, 1851, said Joseph S. Curtis and said Randall commenced their suit against the plaintiff, and the other owners of said vessel, for damages sustained by the plaintiffs, by reason of their non-performance of their undertaking, in the premises, by the defendants. Said writ was duly returned to the next superior court, for Hartford county, and such proceedings were afterwards had in said case, that said Curtis and Randall recovered a judgment against the owners of said vessel, for the sum of $100 damages and costs. The defendant Curtis, by his counsel, claimed that the performance, by the owners of said vessel, of all and singular the stipulations and agreements, by them to be kept and performed, was a condition precedent, and that, without such performance, the plaintiff could not recover, and that, if such performance were not a condition precedent of the plaintiff’s right of recovery, yet that the defendants had a right to prove in defence, that said contract had not been performed, and that, even if the said Curtis and Randall would have been estopped by said former judgment, from setting up in defence such non-performance, in case they had been defendants, yet that the defendant was not estopped thereby, being only a surety, and not a party, or privy, to said judgment. And to show that said contract had not been performed, he offered evidence to prove the truth of allegations of violations of such contract by the plaintiff, contained in his answer to said bill. To the admission of this testimony the plaintiff objected on the ground, that the allegations contained in said answer had been passed upon by a court of competent jurisdiction, and were res adjudicatei; and to sustain said objection, he offered in evidence the record aforesaid. To the admission of this record the defendant objected, on the ground among others, that the defendant was neither a party, nor privy to said record. But the committee overruled said objection, and admitted said record as conclusive upon the parties, finding that the averments and the declarations in said record, and those set up in the answer as aforesaid, were founded on one and the same contract, and not otherwise, and were identical, and thereupon excluded the evidence offered by the defendant. The committee found upon the admitted testimony in said case, that, excluding a charge of $58.06 for primage, which was not sustained by any satisfactory proof, and including $250, charged for Randall’s passage, there was due from the defendant, the sum of $4,790.82. But if the court should be of opinion, upon the facts found by the committee, that said charge should be excluded, then there would be due to the plaintiff the sum of $4,478.94. The committee further found, that all the allegations in said bill, not otherwise found in said report were true, and that the aforesaid proof offered to sustain the allegations in the answer being ruled out, said allegations were found not true. The case was reserved for the advice of this court as to what decree ought to be passed.