Smith v. Moore

The opinion of the Court was delivered by Willard, A. J.

The plaintiffs were nonsuited in the Circuit Court. The action was a breach of warranty of merchantable quality on a sale of cotton. The plaintiffs proved the sale and delivery to them by the defendant of cotton in bales sold by sample. No evidence was offered showing at the time it was sold and delivered to plaintiffs whether it was according to the samples or otherwise.

Plaintiffs rested, as to proof of a breach of the implied warranty, upon the record of a judgment reeoveredr,in the'United States Circuit Court against the plaintiffs in an action brought by McDonald, a third person, to whom the plaintiffs had sold the same cotton, fer damages by reason of the cotton being unmerchantable and not fit for sale in the New York market at the time of the sale and delivery by the present plaintiffs to the plaintiff in such action. The sale to the present plaintiffs was June 15th, 1866. The sale to McDonald is fixed by plaintiff’s testimony on the next day, the 16th. The day of the delivery to McDonald is not in proof, but is laid in the declaration in the action in which the judgment was recovered as the 18th of the same month.

The question presented by the judgment of nonsuit is whether the recovery against the plaintiffs is sufficient in point of law to warrant the jury in finding a verdict for the plaintiffs. It appears that defendant had notice of the pendency of the action and opportunity to assist the plaintiffs in their defense; but it does not appear that he, actually defended the action.

*215 Defendant cannot be regarded as a privy to the judgment offered in evidence, and is not barred or estopped by it, although such judgment is competent evidence to show the extent to which the plaintiffs have been damnified, provided a breach of the implied warranty is established by competent evidence.

The general rule is, that a verdict or judgment in a former action upon the same matter directly in issue is evidence, not only for or against the parties to the suit, but for or against privies in blood, privies in estate and privies in law. But, in general, notice of the suit and an opportunity to be heard appears to be indispensable to make the judgment conclusive evidence. — Burrill vs. West, 2 N. H., 190; Phillip’s Ev., (Cowen, Hill & Edward's Notes,) vol. 2, p. 12.

If the defendant is a privy, as it regards the operation of the judgment, it must be as “privy in estate.” Are they so to be regarded ? Privies in estate are where there is a “ mutual or successive relationship as to rights,” as in the case of joint tenants, donor and donee, lessor and lessee, and successors in office. — Phillip’s Ev., (C., H. & E. Notes,) ante.

Privity resulting from mutuality of right is not involved in the present case, for that depends upon the power of one person to represent another as to transactions in which they have a mutual interest. We are dealing with the relationships of vendor and vendee, and the privity involved in that relation depends necessarily on the idea of succession.

The direct object of the rule establishing privity for certain purposes between the different persons necessarily holding the same title to some definite subject of property is to give one and the same character to such rights, however often they may change hands. A subject of property having received in the hands of an owner a durable physical impression, all persons succeeding to its ownership are affected by the act causing such impression. The rights and obligations that constitute the idea of property stand for the material property, and the law seeks to perpetuate impressions made upon these rights and obligations into the hands of those succeeding to the parties causing such impressions. Not only the direct act and deed of a party holding property are capable of affecting the nature of his title to it, but a judgment or verdict in personam recorded against him works by operation of law similar changes. Inasmuch as the effect of such a judgment may be *216 only indirect upon such title, the direct effect being to bind the person, rather than the estate, the law causes the person who succeeds to the property to succeed also to the rights and obligations affecting it, as established by the judgment.

The naked fact that some subject of property is in the hadns of one to-day and of another to-morrow does not of itself make the rights and duties of such persons, as it regards the property, identical. It appears to be the successive possession of the title, the legal idea of property, to which the rule has relation, and the state of the title the subject of the rule. This is illustrated by the fact that recovery in an action affecting part only of the subject of property works a change upon the title by which the whole is held. — Doty vs. Brown, 4 N. Y., 71 .

The direct application of the rule as to privity of estate between parties succeeding to the same property presupposes a case of the acquisition of property from one bound by a judgment affecting his title to such property, and aims to transmit that effect to such successor.

The principle of this rule has been applied to a class of cases arising between a warrantor of title, express or implied, and a vendee of such warrantor. A recovery against the vendee, under title paramount to that warranty, when the warrantor has had notice of the action and opportunity to defend, binds the warrantor as conclusive proof of the breach of the warranty. — Middleton vs. Thompson, 1 Sp., 67 ; Allen vs. Roundtree, 1 idem, 80.

This rule is applicable to personal property as well as real.— Allen vs. Roundtree; Brewster vs. Countryman, 12 Wen., 446.

The rule, as thus applied, derives its main force from the fact that the warranty of title to land was not merely an obligation of the covenantor to indemnify the covenantee if the title warranted failed, but to defend that title in his grantee’s hands. This idea was a direct outgrowth of the feudal notion of property, and in England gave rise to the remedy by voucher in case the covenantee wras sued upon a claim of title paramount. In this State the obligation to defend is still recognized, but the practice is changed by the substitution of a notice for the mere formal proceeding.— O’Neall, J., in Middleton vs. Thompson, 1 Sp., 67 .

The effect of the notice would then be to place the warrantor in the same position as if he had been made a party to the action.

*217 This principle has become still more enlarged in its application and extended from the case of a warrantor of title to land to cases of both express and implied warranty as affecting both real and personal property.

Allen vs. Roundtree ( 1 Sp., 80 ,) was an action upon a warranty on the sale of a slave, and it was held that the warrantor, after notice of the pendency of the action, was a privy to the judgment recovered.

In Brewster vs. Countryman, (12 Wen., 446,) the principle was applied where there was a parol promise to indemnify against paramount title to personalty.

In the class of cases above referred to the relation of vendor and vendee existed between the parties, and the matter of dispute was a question of title, either to real or personal property. In them, the principle of privity of estate became associated with another principle, growing originally out of the nature of a covenant to warrant and defend, viz.: That the covenantor was bound not merely to indemnify, but to defend actively, and in time extended in its application to cases of implied warranty, both of real and personal estate.

It is clear that the right claimed by the plaintiffs to bind the defendant by the judgment recovered against them, although with notice of suit brought, cannot be supported by the principles on which the eases referred to were decided; for although the relation of vendor^ and vendee existed between them, yet the question was not one of title.

There is another class of cases to be examined, whére the binding force of a judgment has been extended to collateral warrantors and indemnitors not necessarily sustaining the relation of vendors to the party seeking to bind them by the judgment against him. Prominent among the cases of this class are covenants and promises to indemnify persons performing certain acts of authority over property, either as agents or otherwise, for the benefit of the indemnitor. The most numerous cases of this class are under bonds indemnifying officers charged with process against property, for the levy and sale of particular property, claimed adversely to such process. 'These cases, although not necessarily between privies in estate, possess substantially the same elements; for there is a conflicting claim of authority as it regards property, real and personal, involving a question of title and an obligation to indemnify in the *218 nature of a warrant of title and of the sufficiency of the authority which the party indemnified is called upon to exercise.

Burrill vs. West, (2 N. H., 190,) belongs to this class. Judgment was recovered against a Constable for the sale of property on execution. He then sued the defendant, who had indemnified him for selling, and offered the judgment against himself as evidence to bind his indemnitor. The action failed for want of notice to the defendant of the pendency of such suit and an opportunity to defend; but the opinion recognizes the general doctrine, and traces the analogy between this class of cases and those that depend directly on covenants of warranty in the following language: “The amount of the defendant’s undertaking was to save the plaintiff harmless from .the claims of all persons having a better title to the chattel than the title of W. West, the debtor.”

The cases of this class are numerous and need not be particularly referred to.

Train vs. Gould ( 5 Rich., 379 ,) was a case of this class, arising under a parol agreement to indemnify. Lovejoy vs. Murrey ( 3 Wall., 1 ,) belongs to this class, but will be noticed hereafter in connection with another branch of the general subject.

In Castle vs. Noyes, ( 14 N. Y., 329 ,) a principal claimed the benefit of a judgment recovered by his agent as a privy thereto. Castle and Noyes both claimed title to certain lumber. Castle’s servant, by his direction, took a portion of this lumber out of Noyes’ possession. Noyes sued the servant but was defeated. Castle assumed the defense of his servant, and the question was the title as between Castle and Noyes to the lumber. The Court held not only that the judgment was conclusive between the parties as to the particular lot of lumber immediately involved, but that it was conclusive of the title to the whole quantity of lumber held by the same title. Here this was a question of title paramount and an agreement to indemnify, implied from the relation of master and servant, and the additional fact that Castle actually defended the suit as the substantial party in interest. The last mentioned circumstance will be noticed in another connection.' The Court say: “The implied obligation, growing out of the relation of master and servant, is, I conceive, the ground of estoppel of the judgment in actions of this class,” and as illustrating the similarity of such an implied covenant of warranty. As it regards the duty of actively defending, the Court says that it was the master’s duty to *219 “ appear and assume his defense, grounded upon an implied obligation to save him harmless in the commission of the trespass.”

In the class of cases just noticed, we find the question to be one of title, and the reason for holding third persons privies to the judgment to be the fact that such third persons were under an obligation, either express or implied, to assume the position of parties in such suits. In the one case, this obligation arises out of contracts assimilated to covenants of warranty, and in the other ease out of the relation of master and servant.

Whether the master could be bound by a judgment for or against his servant, independently of the fact of his taking part in the action, and merely under the operation of notice, is left in doubt by the cases examined. Certainly if a master approves and adopts the act of his servant, and seeks to derive benefit therefor, there is reason to charge him with all the consequences of that act. But to hold that wherever the servant is sued, whether for acts rightfully or wrongfully performed, as it regards his master, the agent may by notice bind his master to the consequence, as affecting third persons, of whatever may have been done by him, would appear to be inconsistent with the right of the master to limit his liability to that which is called for by his relation to his servant.

At all events, when the master undertakes to control the suit of his servant, and thus becomes a substantial party, it may be considered that he is brought into a relation of privity with the judgment, and is both bound by it and may use it for his advantage. Under this view of the subject the identity in principle of such cases with these assimilated to a covenant of warranty is evident, for a master, upholding the action of his servant for his own benefit, stands in a relation closely similar in principle to that involved in the feudal idea of the relation of the occupant of the soil to him under whose title such occupation ought to be defended.

The present case is clearly excluded from the last mentioned class, as from others in which the principle of privity of estate and warranty of title were directly involved and applied.

The next class of eases to be noticed does not involve questions of title, but depends on the construction and force of contracts, express or implied, to indemnify against certain events. These cases must be distinguished from the class in which the recovery of judgment is in itself a breach of the condition of the contract, in which cases it appears that the indemnitor is bound by the judg *220 ment without regard to notice, the recovery of the judgment being the very inquiry sustained by the covenantee that was indemnified against. These cases can hardly be said to depend at all upon privity with the judgment, for the ground on which the record is admitted is that it is primary evidence of the fact of a breach, and not a mere estoppel arising from a former recovery, while the class now under consideration depends upon the fact of privity.

In Tyler vs. Ulmer, ( 12 Mass., 163 ,) the action was against the Sheriff for the default of his deputy in executing process. It was held that the action, although in form against the Sheriff, is substantially against the deputy, who is immediately answerable to the Sheriff upon his bond, and against whom the verdict may be used as evidence to establish the claim of the Sheriff against him. The question before the Court was as to the competency, as evidence against the Sheriff, of unsworn statements made by the deputy. The competency of the evidence appears to rest on the peculiarity of the action in question. The Court says: “ The form of the plea in these cases is that the deputy, not the Sheriff, is not guilty or does not owe, and the verdict pursues the plea. This case must be regarded as depending on a peculiar practice, placing the Sheriff and his deputy in unusual legal relations in reference to such action. It, in effect, holds that the deputy is, by operation of law, to be regarded as an actual party, although in name against the Sheriff. The character of both the pleadings and the evidence is conformed to that assumption.”

• In Kipp vs. Bingham (6 Johns. R., 157,) a judgment recovered against the Sheriff for an escape was held to conclude the obligors on a bond to the limits. The decision was put upon the ground that the obligors had “assumed upon themselves the defense of the suit and had become essentially parties.” This case supports the proposition, that where an indemnitor assumes the defense of the person indemnified, in an action against such person, he makes himself a privy to the judgment. It is not authority in itself for the proposition that in all such cases the indemnitor is held, as a privy, merely because he is under an obligation to defend, and fails to do so, after opportunity for that purpose has been afforded.

Lovejoy vs. Murrey ( 3 Wall., 1 ,) holds that an actual defense made by an indemnitor, in an action relating to the subject matter of indemnity, makes the judgment in such action conclusive against him. Independently of an actual defense, frequently adverted to in *221 the cases as forming ground of privity, the cases do not appear to establish, directly, the proposition that an indemnitor with notice and opportunity to defend is bound as a privy to a judgment recovered against the party indemnified in respect of the subject of indemnity, where a question of title is not involved. On the other hand, they appear, indirectly, to exclude the idea that any such unqualified rule exists. Some of these will be noticed. At the same time reference will be made to a class of cases, already referred to, arising on agreements to indemnify where the question is not one of privity, but of an inherent force in the judgment as primary evidence to establish the fact of a breach.

In Daffield vs. Scott, (3 T. R., 374,) there was an indemnity against debts, and it was held that a judgment recovered on a debt of the class indemnified was conclusive evidence of a breach. A covenant against debts, properly construed, is not merely a covenant that no such debts exist at the time, but a covenant to repay any amount that the party may be compelled to pay under legal proceedings to enforce such debts. So the judgment did not merely measure the amount of damage, but occasioned the damage against which the party has been indemnified. Hence the judgment would be primary evidence of a breach of the contract to indemnify.

Wild vs. Nichols, ( 17 Pick., 538 ,) is similar in principle to the last. In Waldo vs. Levy, (7 Johns. R., 173,) the action was on a covenant against encumbrances. A mortgage was proved to be outstanding at the time this covenant was made. To prove an eviction under the mortgage, it was held competent to show a judgment in ejectment recovered upon the mortgage. This was not a case of privity, for the judgment was in itself evidence of the eviction and the best evidence. No attempt was made to bind the covenantor to the judgment as a privy by any proof of notice.

Henderson vs. Levey, (2 Greenl., 139,) arose out of the relations of principal and agent. Defendant shipped for plaintiff, a ship-master, lime. Plaintiff sold the lime as defendant’s agent. It proved worthless. The purchaser from plaintiff sued him and recovered judgment. Plaintiff proved that defendant had notice of that suit and an opportunity to defend, and offered the record of recovery against him in evidence. The Court held that “ it was only admissible proof to show that a judgment had been obtained against the plaintiff by Conner on the facts appearing in that record and the amount which had been recovered.” As the plaintiff *222 had only offered the record for this limited purpose, proving by other means the bad quality of the lime, this case ought Dot to be considered as fully deciding the question of conclusiveness as it regards the character of the lime shipped, but it discloses the mind of the Court as averse to allowing such effect to the judgment.

Lee vs. Clark (1 Hill, N. Y., 56,) was a covenant to indemnify against claims. It was held that a judgment recovered upon such a claim was competent without proof of notice, showing that the case turned upon the construction of the contract, making the judgment in itself a breach of the covenant, and not upon the idea of privity with it.

It remains to consider the case of Robbins vs. Chicago, reported on its first hearing in 2 Black, 418 , and on its second hearing in 4 Wall., 657 . The report of the case in 2 Black shows distinctly the nature of the question before the Court. The city of Chicago licensed Robbins, an owner of a house and lot fronting on a public street, to make an area in the street in front of his house. In consequence of negligence in covering this area while under construction, Woodbury received injury, for which he recovered judgment against the city. The city sued Robbins as ultimately liable for the damage. The fact of negligence of Robbins was established by proof, and independent of the record of recovery against the city, and, after proving notice to Robbins of the pendency of such suit, and that he had an opportunity to defend it, it was offered solely for the purpose of showing the amount of damage, it was held that it was conclusive proof of that fact. On the hearing reported in 4 Wall., the same facts and question appeared, and no greater weight was demanded by the plaintiff for the record than that just stated. The Court say, in the report in 2 Black: “If it was through the fault of Robbins that Woodbury was injured, he is concluded by the judgment recovered if he knew that the suit was pending and he could have defended it.” This implies that proof of Robbins’s fault must be made independently of the judgment. Justice Clifford says, in 4 Wall., in reference to the rule as to who are to be considered parties and who are not: “ Parties in that connection include all who are directly interested in the same subject matter and who had a right to make a defense, control the proceedings and examine and cross-examine witnesses and appeal from the judgment. Persons not having these rights substantially are regarded as strangers to the cause, but all who are directly interested *223 in the suit and have knowledge of its pendency, and who refuse or neglect to appear and avail themselves of these rights, are equally concluded by the proceedings.”

This certainly was not intended as laying down the rule that whenever a party is sued, and he may have recourse to a third person, in case of recovery against him, he may, by notice of such person, bind him to the record as a substantial party. The case called for no such general statement, nor could Greenleaf on Ev., (12 ed., 1, 559,) cited as authority, sustain it.

The proper understanding of the view of the Court is, in the first place, to confine that remark to that class of cases in which it- is competent for a party to bind another to the record, by affording notice and an opportunity to defend; and, in the second place, to regard it asa limitation of the right to call in such persons in cases in which it is competent so to call them in. Before passing from the consideration of the class of cases in which the judgment is primary evidence of the breach of an agreement, it is proper to notice the bearing of this subject in cases arising on lands indemnifying against the consequences of some act to be performed or omitted, either on the part of the indemnitor, the indemnified, or a third party, where a question of title is involved. It would seem that to indemnify against the consequences of an act, would be to indemnify against a judgment recovered in consequence of such act. In all these cases, whether the security is taken to prevent wrongful acts, as in case of official bonds, or to secure the performance of voluntary acts, claimed as beneficial to the indemnitor or a third person, it would seem that the force of the judgment ought not to be considered as depending on the idea of privity, but as having such force, greater or less, absolute or conditional, depending on the true construction of the contract of the party. This would cover a numerous class of cases between the Sheriff and his deputies and indemnitors, and refer the question of the force of the judgment in such cases to the contract of the parties, giving it force as primary evidence.

It is evident from a review of the cases that the rule in question has not been extended so far as to make a judgment recovered by a vendee against his vendor for a defect in the quality of goods sold evidence of the want of the required qualities in an action brought by the latter against his vendor. Such a rule would be of doubtful convenience, if established, for the condition of the goods *224 at the time of delivery being the test of liability, to make a record of the condition of the goods on one day conclusive or even prima fade proof of what that condition was on some previous day would lead to greater inconvenience than to refuse the application of the rule altogether.

Suppose in the present case that the cotton had been rendered unmerchantable by something that had occurred intervening the day of the first delivery 'and before the last delivery, that fact ' could not have been given as evidence, properly, in the issue against the present plaintiffs by the present defendant, for it united to establish the liability of the present plaintiffs in that case, and yet ought to appear to discharge the present defendant from liability. In a word, the interests of the plaintiffs and defendant were not the same as to the issue tried in that suit, and each ought to be permitted to make his own defense, in accordance with his own interest.

The motion must be denied.

Moses, C. J., and Wright, A. J., concurred.