IN
ERROR.
The
defendant being indebted to the plaintiff for goods sold
drew a bill of exchange for the amount on A. which was duly
accepted, but not paid. An action of assumpsit was then
brought by the plaintiff against the defendant, in which the
plaintiff declared for goods sold, work and labour done, and
on an account stated. This action was arbitrated by the
defendant. At the hearing before the arbitrators the
plaintiff produced no other evidence than the bill of
exchange. The arbitrators found that the plaintiff had no
cause of action. The plaintiff appealed; and on the trial
before the jury the plaintiff gave in evidence his book
account but not the bill of exchange. A verdict and judgment
were given for the defendant. A new action was then brought
in which the plaintiff declared against the defendant as the
drawer of the bill of exchange. Held, that if the
bill of exchange were taken in payment and satisfaction of
the debt for goods sold, & c., it formed a distinct cause
of action; and that the verdict and judgment in the action
for the goods sold, & c. were not conclusive against the
right to recover in this action.
ERROR
to the Common Pleas of Chester county.
William
Gray brought an action of assumpsit to the use of Enoch Gray
against Benedict Darlington, to May Term 1830, under the
following circumstances.
In
1824, Gray sold goods to Darlington, and afterwards took his
bill of exchange on one Boyer, of Reading, for the amount
which was duly accepted, but not paid.
Gray
brought suit in 1825, against Darlington, and declared for
goods sold, work and labour, and on an account stated. The
defendant then arbitrated the case. Before the referees, the
plaintiff did not produce his declaration, or offer any
evidence of goods sold, or work and labour, as laid in his
declaration; but gave in evidence and relied upon the bill of
exchange which constituted the single matter in dispute on
this hearing. The arbitrators awarded " no cause of
action," and the plaintiff appealed. On the trial
afterwards, in Court, he relied upon his book account, and
did not produce the bill of exchange, or introduce it in any
way to the consideration of the Court and jury. The verdict
and judgment were for the defendant. The plaintiff then
instituted this suit, and declared upon this bill of
exchange. The defendant pleaded specially, a former recovery
setting out the reference and award. The plaintiff replied
alleging that the verdict and judgment in that case were for
a different cause of action; not traversing the award. The
defendant demurred, assigning this for special cause. Upon
the demurrer, a statement of facts was agreed upon, and filed
of record.
The
defendant being a relation of Judge DARLINGTON, then
president judge of the district, the case was submitted with
the pleadings at a special Court, to Judge KING, who
overruled the demurrer, and gave judgment of respondeat
ouster; whereupon the defendant pleaded the general
issue.
On the
trial before Judge KING, the defendant gave in evidence, and
relied upon the award in the former case, with proof that it
constituted the only matter tried before the arbitrators. The
plaintiff obtained a verdict, and the defendant moved for a
new trial, on the ground that the verdict was against law in
this respect, and that the law had not been sufficiently or
properly explained to the jury in the charge of the Court.
The Court granted a new trial. Judge KING, giving the
following opinion.
"
Among the various reasons assigned for a new trial, there are
but two which I regard as in any substantial manner affecting
the verdict. These are, first, that the verdict is against
the weight of the evidence; second, that the Court did not in
their charge to the jury, enforce with sufficient
distinctness the legal effect of the former, and subsisting
verdict and judgment in Gray v. Darlington. The
facts, so far as they bear on these points, as they present
themselves to my mind from a view of all the evidence, may be
thus stated. On the 31st day of August, 1824, Benedict
Darlington, the defendant, being indebted to the plaintiff
William Gray in the sum of one hundred and fifty dollars
drew his draft for that amount in favour of the plaintiff, on
Jacob K. Boyer of Reading, which was duly accepted. At
maturity, however, the draft was dishonoured and protested.
Subsequently Benedict Darlington promised to pay the draft,
which promise, for reasons not important to be now noticed,
not being complied with, William Gray instituted his action
against him in the Common Pleas of Chester county, to August
term, 1825. In this action, William Gray declared against
Benedict Darlington, for work and labour done, for goods sold
and delivered, and on an account stated. At the time of the
commencement of this action, it does not appear that Gray had
any other claim or demand against Darlington, except such as
arose from the unpaid draft, or the consideration for which
it was given. The cause was arbitrated, and before the
arbitrators, Gray gave in evidence as his cause of action,
the protested draft already noticed. The award of the
arbitrators being for the defendant, Gray appealed, and on
the 10th of November, 1829, a trial by jury was had, on which
the verdict was also for the defendant. On this
trial, Gray did not give the draft in evidence, but exhibited
as his cause of action a book account against Darlington,
which from the testimony of William Gray, given on the trial
before me, I have no doubt was the consideration for which
the draft was given. On the 6th day of May, 1830, Gray
instituted the present suit for the use of Enoch Gray, his
assignee, and declared on the draft of the 31st of August,
1824. At the trial, the defendant gave in evidence the record
and judgment in the case of Gray v. Darlington,
brought to August term, 1825, and insisted, among other
things, that this record, connected with the testimony of
William Gray, showing that the foundation of that action was
the same as the present one, viz. the draft of August 31st,
1824, was conclusive evidence against the right of the
plaintiff to recover. The instructions given by me to the
jury in these particulars were " that if from the
evidence they were satisfied the first suit of Gray v.
Darlington, was either for the protested draft, or its
consideration, the plaintiff could not recover, but was
concluded by the verdict and judgment in that case; but if
from the evidence they were satisfied that the cause of
action in that case was for a different debt or demand, that
the plaintiff could recover in this action, the former
verdict and judgment to the contrary notwithstanding."
Which of these alternative views was the correct one, was of
course submitted to their decision as a question of fact.
Since the argument for a new trial, I have given the case a
calm and deliberate re-consideration, and whatever may have
been my impressions on the trial, under the influence of the
apparent equity of the plaintiff's claim, arising from an
impression that he had never received actual payment of the
draft; I find myself impelled to the conclusion, that under
the existing aspect of the evidence, the verdict cannot be
sustained consistently with the well-settled principles of
law. If there is one principle of law more free from
difficulty than another, it is, that a verdict for the same
cause of action between the same parties, is absolutely
conclusive; and so long as it remains in full force and
effect, the matters determined by such verdict and judgment
never can again be the subject of litigation between them.
The legal maxim is, " nemo debet bis vexari si
constat curiæ quod sit pro una et eadem causa.
" 5 Co. Rep. 61. Nor can the defeated party re-agitate
the settled controversy by modifying the form of his action.
For the cause of action is the same, when the same evidence
will support both actions, although the actions may happen to
be founded on different writs. 2 Black. Rep. 831; 3
Wils. 308; 1 Starkie, 196; 8
Johnson, 383; 7 John. 20; 4 Rawle,
284; 13 Serg. & Rawle, 276. The plaintiff cannot
have a second investigation of the same original
matter, when it has passed once " in rem
judicatam. " 4 Rawle, 485. " A
verdict," says Judge ROGERS, in Killheffer v.
Herr, (17 Serg. & Rawle, 319,)" for
the same cause of action, between the same parties, is
conclusive; for when a Court of competent jurisdiction has
adjudicated directly upon a particular matter, the same point
is not open to inquiry in a subsequent suit for the same
cause and between the same parties. It may be a great
misfortune, as in this case, that from causes over which he
had no control, the party may not have been properly prepared
for trial. It is however, a misfortune which the Court cannot
remedy, as the rule is settled on the principle that there
must be an end of litigation, and to provide against the loss
of testimony." It is true that there are cases where a
plaintiff has embraced several demands in his declaration,
but on the trial of the action, has offered evidence as to
part, and no evidence as to the others, that he has been
permitted to show the truth of the fact in a subsequent
action for the demand not inquired into in the original
action. Sedden v. Tutop, 6 T. R. 607.
Snyder v. Croy, 2 Johns. 227. But even in a
case of this urgency, Lord KENYON, who ruled the leading case
on which this doctrine is established, felt he was occupying
dangerous ground. He observes, " that this is a question
of great delicacy; we must take care not to tempt persons to
try experiments in one action, and when they fail, to suffer
them to bring another action for the same demand: the
plaintiff who brings a second action ought not...
