Holbrook v. J. J. Quinlan & Co.

Powers, J.

The plaintiff patronized a “Stock Exchange” conducted at Newport by one Charles N. Bra'dy. The result was not altogether unusual, — he lost his money. He brought a suit against this defendant returnable to Orleans County court, predicating his claim upon the ground that this stock proposition was the defendant’s, and that Brady was its agent. This suit was, on the defendant’s motion, (it being a Maine corporation) removed to the Federal court and was therein tried at its May Term, 1907. The declaration in that suit counted specially on six different stock transactions, each bearing a separate number and date, and contained a general count in assumpsit. When, at that trial, the plaintiff attempted to give evidence of the two trades here in suit, numbered 288 and 294 and dated April 6, 1905 and April 10, 1905, respectively, the defendant objected on the ground that there were no special counts in the declaration covering these trades, and that recovery could not be had thereon under the general count. The circuit court having intimated an opinion that no recovery could be had for the damages sought — which included dividends and rights which had accrued on stocks purchased — without special counts upon the. respective contracts, the plaintiff, without attempting to amend, abandoned his claim for damages for the breach of these two special contracts, and attempted to recover the money paid in upon them, — insisting that, in the circumstances, he could rescind the contracts and recover the consideration paid under the general count. In this position he was sustained by the circuit court and he amended his specification accordingly. The jury rendered a verdict for the *417 plaintiff which included the amounts paid in on these two trades and interest thereon — $1,063.30. The defendant carried the case to the circuit court of appeals which handed down a decision in May, 1908, holding that the declaration did not contain proper counts to warrant a recovery for damages for breach of the special contracts embodied in these two trades, and that the plaintiff could not rescind and recover the money paid in. The judgment order contained the following provision: “It is hereby ordered, adjudged and decreed that the judgment of said circuit court be and it hereby is reversed unless the plaintiff remits $1,063.30 within such time as may be fixed by the circuit court. If such remittitur be made, the judgment is affirmed. ” The plaintiff seasonably complied with this requirement by filing a remittitur of the amount specified, and, a few days later, the defendant filed a “protest” wherein it insisted that if the plaintiff intended to make further claim for any of the items included in his specification, he should do so in the circuit court, and that no other court had or could have jurisdiction over them or any of them. The circuit court gave no heed to this and on June 26, 1908, issued execution for the amount of the original judgment less.the amount remitted. This execution was promptly paid.

The case in hand is an action of special assumpsit on the two trades above referred to — Nos. 288 and 294. The defendant (having first pleaded a special plea which is not here - involved) pleaded the general issue and a special plea in bar. The latter set out all the facts regarding the first suit as above recited,

The defendant filed a motion to remove this case to the circuit court and objected to all proceedings in the state court, on the ground that these two transactions were finally settled and determined in the first suit; and if not, were finally removed to the -circuit court and only triable therein. At the close of the evidence the defendant moved for a verdict on the ground that the state court had no jurisdiction of the subject-matter, that he was estopped by the proceedings in the first suit, and that the matters involved were res adjudicata. On all these points the court ruled against it and proper exceptions were reserved.

We agree with the defendant that when a cause is removed *418 to the Federal court, it all goes. No part of the suit or the subject-matter thereof remains in the state court. Friedman v. Israel, 26 Fed. 804 ; Company v. Carter, 88 Fed. 707 ; Kern v. Huidekoper, 103 U. S. 491 , 26 L. Ed. 354 ; Barney v. Latham, 103 U. S. 205 , 26 L. Ed. 514 . The defendant’s position, however, that the removal finally transfers jurisdiction to the Federal court finds support only in B. & O. Railroad Co. v. Fulton, 59 Oh. St. 575, 44 L. R. A. 520, and the dissenting opinion in McIver v. Fla. Cent. & P. R. Co., cited below. In the former case, it is expressly held that when a case is removed to and thereafter disposed of in the Federal court- — even if such disposal is otherwise than on the merits,- — the plaintiff cannot recommence the action in the state court, citing Cox v. E. Tenn. V. & G. R. Co., 68 Ga. 446 . It may safely be asserted that after a cause has been removed, the state court can proceed no further with it or any part of it until its jurisdiction is in some way restored. Carson v. Dunham, 121 U. S. 421 , 30 L. Ed. 992 . But its jurisdiction is restored when the case is disposed of in the Federal court otherwise than on its merits. This proposition is abundantly supported by the cases. Thus in Hooper v. A. K. & N. Ry. Co., 106 Tenn. 28 , 53 L. R. A. 931, it is held that one may take a voluntary non-suit in an action properly removed to the Federal court and begin another action in the state court — criticising B. & O. R. Co. v. Fulton, supra. See also, Ill. Cent. R. Co. v. Benz, (Tenn.) 58 L. R. A. 690. Again, in Young v. So. Bell T. & T. Co., (S. C.) 7 L. R. A. (N. S.) 501, it is held that the removal does not confer such exclusive jurisdiction upon the Federal court that, upon a discontinuance, the plaintiff could not begin a new action in the state court. And in McIver v. Fla. Cent. &c. R. Co., 110 Ga. 223 , 65 L. R. A. 437, it is held that one may become nonsuit or voluntarily dismiss an action properly removed, and thereafter begin a new suit on the same cause of action in the state court. The opinion in this case points out the fact that Cox v. E. Tenn. V. & G. R. Co., 68 Ga. 446 , is not an authority to the contrary.

In Stevenson’s Admr. v. Ill. Cent. R. Co., 117 Ky. 855 , 4 Ann. Cas. 890, it is held that an action dismissed in the Federal court to which it has been removed, does not prevent a state *419 court from assuming jurisdiction in a new suit on the same cause of action. To the same effect are Rodman v. Mo. Pac. Ry. Co., (Kan.) 59 L. R. A. 704, Gassman v. Jarvis, 100 Fed. 146 ,—wherein B. & O. R. Co. v. Fulton is criticised with some severity —Foley v. Cudahy Packing Co., 119 Ia. 246 ; Fleming v. Railroad, 128 N. C. 80 , and other cases to be found in 17 Dec. Dig. under “Removal of causes,” § 109. And it makes no difference if the sum declared for in the new suit is so small that the suit cannot be removed. McIver v. R. R. Co., Hooper v. Ry. Co., Young v. So. &c Co., supra. It is true, as argued by the defendant, that the court will not allow one to be tricked out of his right of removal, —Yawkey v. Richardson, 9 Mich. 529 ,—but here nothing of the kind was attempted or accomplished. The plaintiff was ready enough to try his whole case in the Federal court, but the defendant’s objection stood in the way. Rather than risk an amendment, the plaintiff waived a good part of his claim under these two trades, and tried to recover under his general count. This attempt the defendant rendered unavailing by taking the case to the court of appeals and there prevailing. Surely, in these circumstances the defendant cannot consistently claim that it has been tricked out of its rights.

Nor was this suit prematurely brought. For, without saying when this action should be considered to have been commenced and without saying whether or not the pendency of a former action should be pleaded in advance of a plea to the merits, it is not necessary that the actual dismissal in the Federal court should precede the commencement of the second action. Dana & Co. v. Blackburn, 121 Ky. 706 , 90 S. W. 237 . See also, Howell v. Howell, (Ala.) 54 So. 601 .

When the former case was removed, the plaintiff first claimed to recover therein just what he now sues for; but as we have seen he finally sought to prevail upon an entirely different cause of action. His first claim was based on the theory of a binding contract broken by the defendant; his last upon a rescinded contract. The first was not disposed of on its merits; the last was held to be unfounded. Nothing affecting the cause of action now declared upon was then and there decided except a question of pleading. That judgment is only *420 conclusive on the question whether the plaintiff could rescind these two contracts and recover the money paid in. That is the only res adjudicated'. Nor is the plaintiff estopped by an election of remedies-. Though a suit for damages and a suit for a recovery of the money paid in are inconsistent within the rule of White v. White, 68 Vt. 161 ,—since one affirms and the other rescinds the contract, — the plaintiff is not precluded, since it turned out that he never had the remedy he sought to enforce, and the pursuit of a remedy which does not exist is no bar. Priest v. Foster, 69 Vt. 417 , Whipple v. Stevens, (R. I.) 57 Atl. 375 ; Bunch v. Grave, 111 Ind. 351 ; Agar v. Winslow, (Cal.) 69 Am. St. R. 84 ; Zimmerman v. Robinson & Co.; (Ia.) 5 Ann. Cas. & 960 n.; Rowell v. Smith, (Wis.) 3 Ann. Cas. 773; Clark v. Heath, (Me.) 8 L. R. A. (N. S.) 144; Harrill v. Davis, (C. C. A.) 22 L. R. A. (N. S.) 1153 and n.

The defendant says that the plaintiff’s voluntary remittitur precludes him from maintaining this action. It is not denied (and could not be) that the remittitur was, in a legal sense, voluntary. The effect of it is to be determined.

Though the exact nature of a remittitur damna, as known to the early English courts, is- somewhat obscure, it seems to have been a final relinquishment or surrender of the damages awarded.. Its first application was to cases where the jury awarded greater damages than were declared for. It is now sometimes so defined,-34 Cyc. 1207-and frequently so used. In the earliest of such cases, the term used is release. Thus in Persival v. Spencer, Yelv. 45, wherein a verdict was given for more than was declared for, it was said that if the plaintiff had “released” the excess, all would have been well; and in Auger v. Brookheu, 2 Show. 56, the same term was used. Later on, though it is uncertain just when, the Latin term was adopted; though it does not appear in “Jacob’s New Law Dictionary”, which was published in 1729 and purports to contain the “whole law and the practice thereof,” it is used in Chevley v. Morris, 2 Black. 1301 , and Ray v. Lister, Andr. 384. It was said in Planter’s Bank v. Union Bank, 16 Wall., 21 L. Ed. 473, in speaking of a remittitur of this kind: “It is further assigned for error by the defendants that the court allowed the plaintiffs to withdraw a remittitur entered by them of part of a verdict obtained *421 on a former trial of the case. The only objection made in the court below to the allowance was that the remittitur was an acknowledgement of record that the amount remitted was not due. There had been a former trial in which the plaintiffs had obtained judgment for $113,296.01, with five per cent interest from Nov. 25, 1863. This was a larger amount of interest than the peititon of the plaintiff had claimed, and they entered on the judgment a remittitur of the excess, expressly reserving their rights to the balance of the judgment. Subsequently, a new trial was granted, and it is now contended that the remittitur had the effect of a retraxit. As it was entered after judgment, such would be its effect if the judgment itself had not been set aside and a new trial granted, ”-citing Bowden v. Home, 7 Bing. 716, 20 E. C. L. 318. It was held in the latter case that a nolle prosequi as to part of a claim entered after a-judgment for the whole was equivalent to a retraxit, and a bar to any future action for the same cause. The Lord Chief Justice said that the case was more like the entry of a remittitur after judgment by default than the ordinary entry of nolle prosequi, and that “in the case of a remittitur of part of the damages, the entry is ‘and hereupon the said plaintiff freely here in court remits to the defendant all damages sustained by him the said plaintiff by .reason of the not performing the several promises and undertakings in the two last counts of the declaration mentioned; therefore let the defendant be acquitted of such damages so remitted as aforesaid and go thereof without day/ etc. And as the judgment approaches so near in form to that of a remittitur we think ourselves bound to give it the same effect which is that of a final giving up of the damages by matter of record.”

It thus appears that effect was given to the entry just according to its form, and the conclusion would seem to be that anciently a remittitur damna had the force of a retraxit, which, as shown in Sheffer v. Perkins & Co., 83 Vt. 185 , was a final abandonment of the claim.

But whatever may have been the character and effect of the common law remittitur, in recent times its use has been much extended and the effect given to it has been correspondingly modified.

*422 Thus it was held in City of What Cheer v. Hines &c Co., 86 Ia. 231 , that when a remittitur is filed to prevent a new trial and one is thereafter granted, the party filing the same is not precluded from claiming the property remitted. In School District v. Cook, 47 Mich. 112 , it was held that when one recovered judgment in a justice court for more than one hundred dollars — the limit of a justice’s jurisdiction — and remitted the excess to save a reversal, and the case was thereafter appealed and reversed, it could not be claimed in a subsequent trial that the plaintiff had thereby released that much of his demand. Much the same thing was held in Planter’s Bank v. Union Bank, supra. In Gibson v. Choteau, 7 Mo. App. 1 , a judgment in ejectment was rendered for the plaintiff upon the condition that he enter a remittitur for a part of the lands, — which he did. When he brought a new suit for the lands covered by the remittitur, it was held that he was not barred. “A retraxit,” says the court, “would, of course, conclude him. In that form of entry, the plaintiff voluntarily abandons his cause, and goes further; he admits that he has no cause of action. Pinner v. Edwards, 6 Rand 675. But the entry in the present case makes no such admission. It amounts simply to an agreement not to proceed further in that suit, as to the particular cause of action. Such an entry is no bar against another suit. ’ ’

In Gayden v. L. O. T. R. Co., (La.) 1 So. 792 , it was said that a remittitur is in the nature of a discontinuance and is governed by the same rules.

The foregoing views find indirect approval and support in several cases. It was shown in Sheffer v. Perkins & Co., supra, that an attorney, owing to the limitations of his authority, cannot enter a retraxit. But it is generally held that he may, in a prudent regard for the interests of his client, discontinue the suit. McLaren v. McNamara, 55 Cal. 508 ; Davis v. Hall, 90 Mo. 659 ; Bacon v. Mitchell, (N. D.) 4 L. R. A. (N. S.) 244, and note. And in Brown v. Mead, 68 Vt. 215 , this Court gave such a discontinuance the effect of a non-suit. It is held in Mead v. Bucklin, 2 La. 282 , and in Pickett v. Ford, 53 Miss. 702 , that an attorney may enter a remittitur, and those in Planter’s Bank v. Union Bank, supra, and Bank of Ky. v. Ashley, 2 Pet. 327 , were in fact so entered.

*423 With the change in the use and effect of a remittitur has come a change in the meaning of the term itself. Were we assured, that it was used by the circuit court of appeals in its common law sense, we might feel constrained .to give to it its common law effect. But we have come to use it, not in its common law sense, but in its modern sense, — to denote a mere temporary waiver, — a writing off of so much of the verdict,— an agreement not to proceed further for that particular item in that particular suit. It was in this sense that the term was used by the circuit court of appeals. To hold otherwise would be manifestly unfair to the plaintiff, for justice between the parties only required that the sum erroneously included in the verdict should be eliminated.

If the present rule of this Court, announced in Marshall v. Dalton Paper Mills, 82 Vt. 489 , had been followed, this is all the benefit that the defendant would have obtained by a reversal. For, since the only error found by the court of appeals affected the amount of damages, a retrial would have been limited to that issue; the result of which would have been, (had the plaintiff declined to remit) a new judgment limited to the amount of the six trades; — which is just what the plaintiff had after he filed his remittitur. It could hardly be claimed that these two trades would be concluded by a new judgment so obtained. So to require that the amount wrongfully included in the verdict should be finally forgiven, would be to. give the defendant more than it is fairly entitled to.

It is perfectly apparent that, at the time, the defendant-understood that the remittitur had the force of a discontinuance, only; for it immediately-filed its “protest,” hereinbefore referred to, wherein it insists “if the plaintiff is to make any claim for any item or items which were set out in the specifications, he should -proceed in the circuit court because no other court had jurisdiction thereof.” Surely if the remittitur was then- thought to have the force of a retraxit, this protest was wholly unnecessary.

In the foregoing discussion, we treat the matter as counsel on both sides argue it. It is to be noted, however, that the damages herein recovered were not remitted in the former case. As we have seen, the cause of action there (as the case was finally submitted) was entirely different from the cause *424 of action here, — though both grew out of the same transaction. This is clearly shown by Derosia v. Ferland, 83 Vt. 372 , wherein it is held that indebitatus assumpsit by a servant to recover for services constructively performed' after his wrongful discharge, and a count for damages for a breach of the contract of hiring, are for different causes of action.

The defendant seasonably presented two requests to charge, as follows:

“1. If the business of stock transactions of plaintiff in the office of Mr. Brady at Newport were made the subjects of book account between Brady and Holbrook, and were entered upon Brady’s private ledger as the evidence tends to show, then the plaintiff cannot recover. ”

“2. The evidence is undisputed that the defendant company never received any dividends or rights on the forty shares of stock which the plaintiff claims defendant purchased for him. We ask the court to tell the jury that there can be no recovery in this action for any dividends or rights.”

If we were to treat the exception to the refusal to comply with these requests as sufficiently specific to require consideration, we should find no error therein. The method of bookkeeping alone, would not be conclusive of the plaintiff’s rights. It would doubtless be evidence, but it would not necessarily bar a recovery. Its force as evidence would depend much on whether plaintiff knew how the books were being kept, and whether he then knew of the defendant’s true relation to the business, and many other considerations.

So far as the second request is concerned, we need only say that it involves a consideration of the evidence which is not before us for this purpose.

Subject to the defendant’s exception, the two special verdicts rendered in the circuit court were admitted in evidence. They are as follows.:

“Do you find from the evidence that Charles N. Brady was the agent of the defendant in the stock transactions in issue?

A. Yes.

2. Did the plaintiff in dealing with him in relation to said transactions rely upon such agency?

A. Yes.”

*425 The evidence fairly tended to show that there was no change in the Newport business during the time covered by the plaintiff’s eight deals, and that the defendant’s relation to it was the same during all this time, — which began with No. 288 April 6, 1905, and ended with No. 280, Nov. 4, 1905. If, then, Brady was the defendant’s agent during any part of this period that fact rendered it more probable that he was such agent during the rest of that period. In other words, if Brady was the defendant’s agent in the six trades recovered for in the former suit, that fact tended to show that he was its agent in the two trades here sued upon. The first special verdict determined the fact of agency during the time covered by the six trades, and determined it for all time so far as controversies directly or indirectly involving it between these parties is concerned. Therefore, this special verdict was properly admitted.

This is well shown by Currier v. Richardson, 63 Vt. 617 . There the question was, had the plaintiff stolen certain property of the defendant. To meet the claim of the defendant who took the affirmative of this proposition, the plaintiff was allowed to show that after the time when the defendant claimed to have learned all the facts, he visited her, made her presents, and promised to marry her. These facts, it was said, would, if proved, render the defendant’s claim less probable, and it was held that they might be established by the record of a judgment against the defendant recovered by the plaintiff in an action for a breach of that promise to marry.

The other special verdict stands different. The fact that the plaintiff relied upon the agency in the six deals, has no legal tendency to show that he so relied in the former deals. But the objection below makes it unnecessary for us to inquire whether this error was harmful, for it was predicated solely upon the lack of identity of issues in the two suits. But, as we have seen, identity of issues was not necessary; so the court was justified in overruling the objection, and no new ground of objection will be here considered. Foster’s Exrs. v. Dickerson, 64 Vt. 233 ; State v. Noakes, 70 Vt. 247 .

Various exceptions were saved to evidence admitted tending to show that the literature, arrangements, furnishings and methods of doing business at the Newport office were similar *426 to those at St. Johnsbury and Woodsville, — but it was all properly received. It was conceded that the latter offices were branches of the defendant, managed by it through a local agent. The evidence tended to show that the Newport office was the defendant’s or at least that the plaintiff was reasonably justified in understanding that it was, and in dealing with it as such.

The plaintiff was properly allowed to testify that at the time he made these two trades he knew that the defendant paid the rent on the wire running into the Newport office (which payment the defendant admitted) and that he knew the offices at St. Johnsbury and Woodsville were real agencies of the defendant. The facts all being admitted, proof that knowledge of them was brought home to the plaintiff, no matter how, rendered more reasonable - his conclusion that the Newport business belonged to the defendant and more probable his statement that he dealt with Brady as an agent. The testimony was not hearsay, though it might have been based upon hearsay, for it was the statement of a fact within his own knowledge — that the admitted facts were made known to him.

The plaintiff was also properly allowed to testify that in the two transactions he relied upon the defendant, and upon the dividends posted on the board at Newport, and on the truth of the statement printed at the head of certain blanks used in the Newport office to the effect that it was a branch of defendant’s business. Though the defendant’s evidence tended to show otherwise, there was other evidence in the ease tending to show that the Newport office was, in fact, a branch office of the defendant. This being so, it was permissible to show any relevant statement emanating from that office in the nature of an admission of a material fact. The figures posted and the printed blanks belong to that class. It was competent for the plaintiff to testify directly to the fact that he relied upon such admissions and the conditions evidenced by them. It is' like the proof of motive, belief and intent, to which one may directly testify. Crawford v. Joslyn, 83 Vt. 361 .

The plaintiff was shown a small book issued by the defendant and bearing its name, which came from the St. Johns-bury office but was like those in use at the Newport office; and from this book testified how low New York Central Rail *427 road stock went in 1905. This evidence was admitted to show that the plaintiff was at all times sufficiently “margined”. No claim was made that the witness incorrectly read the figures contained in the book, and none was made that they were erroneous. Whatever the book showed regarding the matter was in the nature of an admission and admissible, if relevant; and in view of the attitude of the defendant, we cannot say that the evidence was irrelevant. The witness was also allowed to show that the “H” and “L” at the head of the columns stood for “high” and “low”, respectively, and that “Div.” meant “dividend”, which was stated to be 5%. In this there was no error. State v. White, 70 Vt. 225 .

The defendant introduced evidence tending to show that the methods of conducting the business at St. Johnsbury differed from those in force at Newport; and as an instance gave evidence to show that the St. Johsnbury manager was required to make full remittances each night, — which rule did not obtain at Newport. To meet this, the plaintiff was allowed in cross-examination of the St. Johnsbury manager, to show that customers sometimes left money with him which was not so remitted. In this there was no error. It tended to discredit the claim of the defendant, just stated; and in any view its admission could not be considered harmful, for the witness said it was against his orders and of very infrequent occurrence.

There was no error in admitting the general verdict and the specification in the first case, nor in admitting the opinion of the circuit court of appeals. The only purpose of admitting the specification was to show the dates of the trades recovered for in that suit. The record of the judgment did not show the exact points litigated; so extrinsic evidence was admissible to show just what was concluded by that judgment. But there was another and a conclusive reason why the defendant cannot be heard to complain: All the facts relative to the former trial, judgment and remittitur were set forth in the defendant’s special plea. Just what that judgment was based upon, and just what was remitted is therein recited. That the two items here in suit were the very ones involved in the amount remitted from that judgment appears from the plea and by a special concession made during the trial. Indeed, *428 the very point of the defence to this case was that these very items were concluded by the judgment or the remittitur. The plea amounted not only to an admission of these facts, but it was a judicial admission of them. “The pleadings in a cause,” says Prof. Wigmore, “are for the purposes of use in that suit, not mere admissions but judicial admissions; they are not means of evidence, but a waiver of all controversy (so far as the opponent may desire to take advantage of them) and therefore a limitation of the issues.” 2 Wig. L. §1064. See also U. S. v. Fidelity Co., 83 Vt. 278 . So even if the method of proof was objectionable, the defendant cannot complain that the plaintiff was allowed to show what he had solemnly admitted on the record. It was proper to show the ground on which the circuit court of appeals denied a recovery under the general count, and this could only be done by the opinion filed.

It was not proper to read the record of the former case to the jury. The contents of the record was for the court, and the jury should have been instructed as to what was shown by the record and how the case in hand was affected by it. Currier v. Richardson, supra. But though the defendant objected, it did not indicate that his objection was made because the record was being read to the jury, rather than shown to the court, nor did it claim that more was being read than was necessary to establish the fact embraced in the offer. So this ground of objection is not now available; for the rule is, subject to certain exceptions which do not here apply, that the objection must indicate the very point on which the court is asked to rule. Doyle v. Melendy, 83 Vt. 339 ; Herrick v. Holland, 83 Vt. 502 . Or, to state the rule in the language of Ala. City etc. v. Ventress, (Ala.) 54 So. 652 , “the court will not be put in error in ruling on a general objection, unless the answer called for is plainly illegal and irrelevant.”

Judgment affirmed and cause remanded for further proceedings against the trustees.