Agate v. Richards

1. Where, in an action on contract for the sale of goods, wares and merchandise, a former recovery upon the same cause of action in a suit between the same parties is set up as a defense; a record of a recovery in a former suit in favor of a plaintiff and against a defendant of the same names, where the complaint in each suit alleges, as the only cause of action stated, the sale of goods, wares and merchandise by the plaintiff to the defendant during periods ending on the same day, and claims the same sum to be due, íurnishes prima fade evidence of the truth of the defense. 2. Identity of names in connection with the same or the like subject matter is presumptive evidence of identity of person.

This is an appeal by James N. Richards, the defendant, from a-judgment, in favor of Joseph Agate the plaintiff, rendered on a trial had before Mr. Justice Pierrepoht, without a jury, June 27th, 1859. The summons is dated April 27th, 1858, and states that judg-' ment will be taken for $72.50, with interest from January 1st, 1858. The complaint alleges a sale for cash, of goods, wares and merchandise, by the plaintiff to the defendant, between the 23d of May, 1855, and the 25th of December, 1856, consisting of “ colored linen shirts, silk cravats, suspenders, &c.,” of the value of $72.50; that such sum is due with interest from the 1st of January, 1857, and prays judgment for that sum and such interest, with costs. The answer avers a former suit in this Court, by the plaintiff against the defendant, for the same cause of action, and a recovery by the plaintiff therein on the 29th of December, 1857, on said cause of action for $90.43 and that such judgment is in full force. At the trial, the defendant, to prove such defense, introduced the record of a judgment in this Court, in favor of Joseph Agate as plaintiff against James N. Richards as defendant. The summons in it was dated November 21st, 1857; was served on the 24th of said November, .and states that judgment will be taken for $72.50, with interest from the 1st of January, 1857. The complaint in it, states a sale by plaintiff to defendant of goods and merchandise, consisting “of shirts, hose, suspenders, &c.,” between the 9th of November, 1854, and the 24th of December, 1856, of the value of $122.50; that $72.50, with interest from January 1st, 1857, is due, and prays judgment for that sum and such interest, with costs. Judgment in it, was perfected, for want of an answer, December 29th, 1857, for amount claimed,.. $72 60 Interest,........................................ 4 83 Costs,.......................................... 13 00 Total,...................................... $90 43 The Judge held, that there was not sufficient proof given of the identity of the parties and of the cause of action in the two suits, and gave judgment for the plaintiff for $85.13, (the amount claimed, with interest;) the defendant excepted to the decision and appealed from the judgment.