Summary
From tbe circuit court of Pontotoc county.
Hon. Eugene O. Slices, Judge.
Gross, appellant, was plaintiff in tbe court below; Todd and another, appellees, were defendants there. From a judgment in plaintiff’s favor for a sum much less than bis demand, plaintiff appealed to tbe supreme court.
Tbe suit was upon tbe second of a series of three promissory notes given appellant by appellees; the first note was for $50 and the others for $100 each, and they were all executed by appellees as a consideration for tbe investiture in one of the defendants of an interest in tbe business of the appellant, evidenced by tbe following writing:
“Contract. Oct. 11, 1902. State of Misssissippi, Pontotoc county: This agreement between E. M. Gross and J. H. Todd, which formed a partnership in overhauling machinery as full partners anywhere in the south and southwest and northwest, and the proceeds to be equally divided as the work is done. He, J. IT. Todd, would do everything in his power to learn and assist E. M. Gross in carrying on this year’s work J. H. Todd agrees to put in all of his time from the. 1st of October, 1902, to .October 1, 1903. To secure E. M. Gross in the performance of this work he puts in one mare called Maud, one-half set harness, one-half machine wagon, one-half of tools and fittings which is his propeiiy, which now is at J. H. Todd’s house, Thaxton, Mississippi, valued at about four hundred and fifty ($450.00) dollars. Should J. H. Todd fail to perform his part of this- contract, said property shall revert to E. M. Gross:
“(Signed) J. II. Todd.”
On the trial it was shown that separate suits had been brought by Gross on each of the three-notes, and that at a former term of court judgment had been rendered in the first suit on the note for $50; the jury in that suit having passed upon the defense of a failure of the consideration for which the- notes were given and, by finding a verdict in plaintiff’s favor for only $5, had thereby decided that the defendants were entitled only to a credit of $45,-because of a partial failure of the consideration for which all the notes were given. On the trial of the present case the appellees were permitted to make the same defense, and the jury returned a verdict in plaintiff’s favor for $12.50.
As the contract between the parties was in writing, it was error to permit parol evidence to be offered to show that appellant was to teach Todd, appellee, a trade. Every agreement of the two parties was written in the contract, and it of course spoke for itself. The only consideration for the notes was the interest bought from Gross by Todd in the tools, fittings and wagon. No effort is made to show that these things were not as represented or that Todd did not receive them, but the only defense was that Gross did not carry out the -partnership- agreement. Now, no violation of the partnership agreement could be available as a defense to the non-payment of the notes; for To-dd got what he bought, namely, a joint ownership with Gross in the tools and other property mentioned in the written contract.
Todd, the appellee, testified that he had no defense to the $100 note in question except that which he had already pleaded in the former suit of Gross against him on the $50 note; and it is shown that in the former suit the value of that defense had been passed iipon by a competent jury and verdict and judgment rendered as to same. In other words, the jury, in the former suit, decided that Todd’s whole defense could avail him only to the amount of $45, the difference between the $50 note and the $5 verdict. How is it possible then that appellee can interpose the same defense to an action against him on the $100 note or on the third note of the series ? It is virtually permitting a defendant to avail himself, and receive the benefit of, the same set-off in two actions brought against him by the same plaintiff. This conclusion is inevitable. In the present case the jury placed a higher value on the defense than did the jury in the former case unappealed from. Shall the appellees be again allowed the same defense to the remaining note of the three, thus allowing them the use of such defense three separate times against different demands, and availing themselves each time of such value as a different jury may see proper to assess ? The idea is preposterous. See Davis v. Hart, 66 Miss. 642, 6 South. 318; Gardner v. Buclcbee, 3 Cow. 127; Bouchard, v. Dias, 3 Denio, 243; Lumber Go. v. Buchtel, 101 H. S. 638; Wells on Res Judicata, §§ 210, 221, 285; and French v. Howard, 14 Ind. 455.
Consideration, want of consideration and failure of consideration can always be shown in evidence. Todd, the appellee, was a competent witness. There is no written contract or agreement showing what the consideration.of the note was, or showing that the consideration had failed. There is nothing in the partnership agreement relied on by appellant to show what was-the consideration for the three notes.
A failure of consideration implied that there was a consideration sufficient to support the contract, but that the consideration had subsequently and without fault of defendant failed wholly or in part. 3 Words and Phrases, 3637. And it is not the recovery, but the matter, alleged by the parties and upon which the recovery proceeds, which creates estoppel. Lumber Go. v. Buchtel, 101 TJ. S. 638. The case of Davis v. Hart, 66 Hiss. 642, 6 South. 318, confines the estoppel to trial on the merits alone, and not the amount of recovery.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
