Brown v. King & Fisher

Napton, J., delivered the opinion of the Court.

The present action was brought before a Justice of the Peace in October, 1844, and the following account was filed as the cause of action: —

M. W. Brown Dr.

To King 8? Fisher,

Aug. 24, 1843, 1555 lbs. spoiled Bacon, l-2c...............$7 77

1056 lbs. do do l-2c............... 5 28

$13 05

The plaintiffs, King & Fisher, obtained a judgment before the Justice, and an appeal being taken, the case was tried in the Circuit Court and a judgment was also there had for them, from which the defendant Brown, has appealed to this Court. On the trial in the Circuit Court the account was proved by the clerk of King & Fisher. The defendant then gave in evidence a transcript of a judgment rendered before a Justice of the Peace, December 5, 1843, on a demand stated as follows: —

M. W. Brown Dr.

1843. To King Fisher,

Aug. 9. For 2080 lbs. spoiled Bacon, l-2c.................$10 40

Sept. 11. 2613 lbs. do do ............... 13 06

$23 46

The defendant then introduced a witness, who testified, that he was in Brown’s employment during the years 1842 .and 1843 — that Brown was a soap boiler — that witness purchased the grease, ashes, &c., used in the manufactory, — that he bought for Brown, from the plaintiffs, spoiled bacon several times — August 4th, 9th and 24th, 1843, and perhaps in June and July of the same year — that he never bought any after August 24, 1843, and was confident that Brown never bought any on the 11th Sept. 1843, because it was his business to make these purchases, &c.

*59 The plaintiffs having been subpoenaed to testify, and failing to appear, the defendant himself testified that he did not owe the demand sued for, —that he had paid it under a different date, to-wit: Sept. 11, 1843— that when the demand sued on before Justice McKenny was presented to him, he did not discover that the date of the last item was incorrect, and when he was sued thereon, he immediately went forward and confessed it — that he personally never purchased spoiled bacon from King & Fisher, but his man Usinger, (who had been examined as a witness,) made several — that none were made after August, 1843.

The plaintiffs then recalled their first witness, to which objection was made, but overruled. This witness stated that he made the sales of bacon, and remembered distinctly selling the bacon charged in the bill sued on, to Usinger for Brown — he directed the clerk who made the entries of sale to charge the same to Brown — this was done on the day of sale — could not recollect the precise number of sales unless by referring to the book of entries. On being shown this book, he pointed out various entries, as follows : —

August 4th, 1843 — 3061 lbs.....................$16 21 paid.

“ 9th, 1843 — 2880 lbs..................... 10 40

“ 24th, 1843 — 2611 lbs..................... 13 05 paid.

Sept. 11th, 1843 — 2613 lbs..................... 13 06

The above was sold to Brown, and entries made by witness’s direction. The first quantity was sold to Brown in person, and paid for at the time. On cross examination, he was asked if there had been an alteration in the number of pounds charged Sept. 11, 1843, from 2611 to 2613 — he replied he thought not, because, if so, there must also be an alteration in the carrying out of the sale — that at the time of the sale he did not know the first name of Brown, but the entries were made by the clerk under direction of witness.

The book-keeper of the plaintiffs was then examined — who testified, that when he came to post the books he found that the item of August 24, 1843, was charged to Brown — that owing to the ignorance of the salesman and clerk, this item was so charged in the day book that he posted this item to the debit of W. Brown, of Illinois, also a customer of plaintiffs —that some time after this the plaintiffs having presented said account to W. Brown, said Brown wrote to him denying having received any bacon on the 24th August, 1843 — that on discovering his error, witness sent the account to defendant, who refused payment, although at the time of making said demand, said defendant produced to witness the identical bill which he had received with the bacon when he purchased it, and for *60 which this suit is brought — but which defendant stated he had paid for by paying the bill dated the 11th September, 1843, and endeavored to convince witness of this by pointing out the similarity of the two bills in all but the date, there being a difference of but two pounds in the amount of bacon, and but one cent in the sum extended in each of them.

The defendant then asked the Court to declare the law to be : —

1st. That if it be established from the evidence that the present cause of action contained in the plaintiffs’s account was due and plight have beén included in the suit before Justice McKenny, the plaintiffs cannot recover in this action.

2nd. That a judgment and satisfaction in a Court having competent jurisdiction, is a bar to a subsequent recovery for any cause of action that might have been included in the former action.

3rd. That if the present cause of action existed prior to the date of the suit before Justice McKenny, the record of which was given in evidence by defendant, and that the same might have been included in said suit, the cost in the present case ought to be adjudged against the plaintiffs.

But the Court refused so to declare the law, and the case being submitted to the judge without a jury, a verdict and judgment were had for the plaintiffs. The defendant excepted to the various opinions of the Court unfavorable to him, and has brought the case here by appeal.

The errors assigned are, the admission of testimony on the part of the plaintiffs after the defendant had testified, — the refusal of the instructions asked, and the refusal to grant a new trial.

Whatever doubts may have existed as to the construction of the act of 1835, which allows a party in a justice’s court to call upon his adversary to testify, and in case of his refusal to testify himself, the'provision on this subject in the revision of 1845 is explicit enough. The 25th Section of the 5th Article, which is the one allowing this privilege, declares, that if a party testifies under this provision after being called on to do so by his adversary, no other testimony shall be heard in the case, on behalf of the party so calling on his adversary. This restriction we understand to extend not only to cases where the party called on testifies, but also to a case like the present, where the party called upon by his refusal to testify puts it in the power of his adversary to testify for himself. In either event, the party choosing to rest his case upon the oath of his adversary, or upon his own oath, is not allowed to call in other witnesses.

This case was tried in November, 1845, in the Circuit Court, and *61 consequently after the act regulating Justices’ Courts in the Revision of 1845 had gone into operation. But had the Revision of 1835 been in force at the trial, we could not say that its provisions on this point must not have been restricted by implication to the same extent they have been in terms by the subsequent Revision of 1845.

The instructions or statements of the law supposed to be applicable to the facts, which the Circuit Court was called upon to give, were properly refused. A correct and concise ex-position of the law applicable to this case, and to cases of a similar character, may be found in Phillips vs. Berick, 16 Johns. Reps. 138. In that case the Court held that, the record of a former recovery apparently for the same cause of action as that which is the foundation of a subsequent suit, is prima facie evidence only, that the demand had been once tried, and the plaintiffs may repel it by showing that it was a distinct demand in relation to which no testimony had been offered on the trial in the former cause, and that it arose out of a distinct and unconnected transaction. If the plaintiff will bring an action for a part only of an entire an indivisible demand, the verdict and judgment in that action are a conclusive bar to a subsequent suit, as where the plaintiff brought several suits for three barrels of potash sold at the same time. Smith vs. Jones, 15 J. R. 229. But the instructions assume that a recovery by the plaintiff for 2613 lbs. of bacon sold and delivered on the 11th Sept. 1843, was a bar to any other claim for bacon sold before that time, although it might appear from the testimony that it was a distinct and disconnected transaction. Such' an exposition of the law as the defendant desired, would have precluded all the testimony of the plaintiff, the object of which was to show that the sale of bacon on the 24th of August was not included in the recovery before Justice McKenny, and that its omission from the account then sued on, occurred through accident or mistake.

The only remaining point made by the appellant is, that the verdict was not warranted by the evidence. The rule which this Court has adopted in applications of thihjimd, has been so frequently stated as to render it superfluous to repeat it here. This was a case, as the statement of the evidence clearly shows, most suitable for the investigation of a jury, or as the parties preferred, of the Court which heard the witnesses. The testimony was exceedingly contradictory, and we cannot hope to find a verdict more satisfactory than the one found by the Circuit Court.

Judgment affirmed.