Abeles v. Wurdack

• Citation: 285 S.W.2d 544
• Decision Date: 12 December 1955
• Docket Number: No. 2,No. 44219,44219,2
• Parties: John T. ABELES, Appellant, v. Hugo WURDACK, Evelyn Wurdack, Sidney Strauss, Roy Graham and Mildred Graham, Respondents
• Court: United States State Supreme Court of Missouri

Page 544

285 S.W.2d 544

John T. ABELES, Appellant, v. Hugo WURDACK, Evelyn Wurdack, Sidney Strauss, Roy Graham and Mildred Graham, Respondents.

No. 44219.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

Rehearing Denied Jan. 9, 1956.

J. L. London, Joseph J. Howard, Cook, Fairfield, Howard & Murphy, St. Louis, of counsel, for appellant.

Israel Treiman, Lashly, Lashly & Miller, St. Louis, for defendants-respondents.

STOCKARD, Commissioner.

This is an appeal from an order dismissing the petition in a suit on quantum meruit on the ground of res judicata. The parties will be designated as in the trial court.

In March of 1948 the plaintiff herein filed suit against all of the defendants in the present suit, and also against Automatic Firing Corporation, seeking recovery of a commission alleged due him pursuant to an express contract. Trial was had without a jury and no request was made by any party before final submission of the case that the trial court prepare and file a brief opinion containing a statement of the grounds for its decision and findings on any of the principal controverted fact issues. A general judgment was entered for all defendants. On its own motion, the trial court then set aside the general judgment while it still retained control thereof, and entered 'Findings of Fact and Conclusions of Law' and the judgment that 'in accordance with the aforesaid Findings of Fact and Conclusions of Law' the plaintiff take nothing. No appeal was taken from that judgment.

Plaintiff then filed the present suit in quantum meruit against the same individual defendants but not against the Automatic Firing Corporation. He alleged that at the special instance and request of the defendants he performed services in assisting them in selling shares of the capital stock of Stok-A-Fire Co., Inc. (Automatic Firing Corporation is the successor of Stok-A-Fire Co., Inc., and both will hereafter be referred to as Stok-A-Fire Co.); that pursuant to said employment he produced a purchaser ready, willing and able to purchase said stock; that on March 18, 1946, defendants entered into an oral agreement with said purchaser for the sale of the stock; and that the reasonable value of his services was $13,500. Defendants filed a general denial and also pleaded the affirmative defense of res judicata. At the end of the appellant's evidence the trial court discharged the jury and dismissed the petition on the grounds of res judicata, and this appeal resulted.

In order to understand the contentions of the parties, it is necessary to set out briefly the evidence of plaintiff in this case. In January 1943 Roy Graham and Sidney Strauss, two of the defendants, requested plaintiff to sell 'some of their stock' in Stok-A-Fire Co. on a commission basis of five per cent, but because of the economic conditions resulting from the war, plaintiff 'wasn't able to accomplish anything.' Right after the surrender of Germany in 1945, Graham and Strauss asked plaintiff 'to go after this and see if a deal can be made,' and it was proposed that he sell the 'control of all the stock' of Stok-A-Fire Co. Plaintiff said he wanted to think it over and investigate conditions, and he later came to the conclusion that 'we had better wait.' In October of 1945 plaintiff found the conditions had changed favorably and he so informed Graham and Strauss who said, 'Go ahead.' In the late fall of 1945 plaintiff contacted Mr. Robert Matthews of G. H. Walker & Co., an underwriting house, and in January 1946 plaintiff told Graham that G. H. Walker & Co. wanted 'something more of a definite proposition.' Plaintiff then wrote a letter to Graham dated January 11, 1946, in which he outlined the 'kind of deal with terms included' which he felt confident could be worked out. This 'deal' provided for the recapitalization of Stok-A-Fire Co. and the sale to an underwriting house of the controlling interest of the voting stock and some of the non-voting stock. Plaintiff suggested a fee of $20,000 for 'working out this deal in its entirety.' This proposal was accepted by the defendants by letter dated January 21, 1946, but it is admitted that plaintiff did not perform pursuant to this contract.

In March 1946 plaintiff was notified thar Mr. Wurdack, one of the defendants and president of Stock-A-Fire Co., had taken over the negotiations with G. H. Walker & Co. Strauss and Graham then told plaintiff, 'You stand exactly where you stood before; you are being taken care of.' Later Graham told plaintiff that Wurdack had refused to sell 'control of the voting stock,' but that he would go along on 'a deal' which did not involve this provision. Plaintiff immediately contacted Matthews who told him that G. H. Walker & Co. would be willing to underwrite such 'a deal' and plaintiff so advised Graham and Strauss. On March 18, 1946, a meeting was held between representatives of G. H. Walker & Co. and all the officers of Stok-A.Fire Co. Plaintiff was invited to be present, but when he arrived he was asked to wait outside the conference room. He was later told that the parties were in complete agreement, and 'had made a deal.' By mutual agreement between the defendant and G. H. Walker & Co., the plan approved on March 18 was never carried out. In 1947 an agreement was reached between the defendants and two underwriting houses whereby capital stock of Stok-A-Fire Co. was sold pursuant to a plan different from any of the previous plans.

In the previous suit on an express contract plaintiff sought a commission of five per cent of the total sale price of the stock sold pursuant to the 1947 transaction. In the present suit on quantum meruit plaintiff contends that he is entitled to the reasonable value of his services in producing a purchaser ready and able to purchase the stock proposed to be sold pursuant to the agreement reached on March 18, 1946. The defendants contend that the doctrine of res judicata prevents the maintenance of the present suit because certain findings adverse to plaintiff in the previous suit on the express contract are conclusive in the instant action.

A former adjudication on the same cause of action between the same parties is conclusive in the second proceeding as to every issue of fact which was or might have been litigated in the first, under what is called estoppel by judgment. A judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment, under what is called estoppel by verdict. State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S.W. 83. The suit on the express contract was based upon a different cause of action from that of the instant suit upon quantum meruit. The contracts upon which the claims are based are different, and it matters not that they both seek to recover for the same atticle, that is, services. Pemberton v. Ladue Realty & Const. Co., 359 Mo. 907, 224 S.W.2d 383; Broz v. Hegwood, 349 Mo. 920, 163 S.W.2d 1009; Perry v. First Nat. Bank, 230 Mo.App. 374, 91 S.W.2d 78; Fritsch Foundry & Machine Co. v. Goodwin Mfg. Co., 100 Mo.App. 414, 74 S.W. 136; Restatement, Judgments, Sec. 65; 50 C.J.S., Judgments, Sec. 649. Therefore, the judgment in the suit by plaintiff on the express contract is res judicata as to those questions, points or matters of fact in issue which were essential to a decision in that case, and upon the determination of which the judgment was entered, but not to other issues. Larsen v. Northland Transp. Co., 292 U.S. 20, 54 S.Ct. 584, 78 L.Ed. 1096; United States Fidelity & Guaranty Co. v. McCarthy, 8 Cir., 33 F.2d 7, 70 A.L.R. 1447; Case v. Sipes, 280 Mo. 110, 217 S.W. 306; State ex rel. Buchanan County v. Patton, 271 Mo. 554, 197 S.W. 353; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; Scheer v. Trust Co. of St. Louis County, 330 Mo. 149, 49 S.W.2d 135; Laughlin v. Boatmen's Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974; In re Delany's Estate, Mo.Sup., 258 S.W.2d 613; Restatement, Judgments, Sec. 68; 50 C.J.S., Judgments, Sec. 712; 30 Am.Jur. Sec. 178. Such prior adjudication may be of a single fact. In re Guardianship of McMenamy, 307 Mo. 98, 270 S.W. 662; In re Delany's Estate, supra. And it makes no difference that all the parties of the prior litigation are not parties to the instant action. Young v. Byrd, 124 Mo. 590, 28 S.W. 83; Nave v. Adams, 107 Mo. 414, 17 S.W. 958.

At the outset we are faced with the contention of plaintiff that the judgment in the suit on the express contract was a general judgment, and therefore is not conclusive as to any particular fact issue, and also that the so-called findings of fact and conclusions of law cannot be examined in order to determine what questions of fact were actually determined because the findings were not requested by any party before final submission.

Section 510.310, RSMo 1949, V.A.M.S., does not by its terms prohibit a trial court from voluntarily making a statement of the grounds for its decision and findings on the principal controverted fact issues. State at Information of Dalton ex rel. Tucker v. Mattingly, Mo.App., 275 S.W.2d 34; Pudiwitr v. Soloman, Mo.App., 224 S.W.2d 562. When it does not appear from the pleadings what matters were litigated and determined by the judgment, 'extrinsic evidence is admissible to show what matters were in fact litigated and determined.' Restatement, Judgments, Sec. 68. See also Jungeblut v. Maris, 234 Mo.App. 288, 130 S.W.2d 681; Stoner v. New York Life Ins. Co., 232 Mo.App. 1048, 114 S.W.2d 167; Perry v. First Nat. Bank, 230 Mo.App. 374, 91 S.W.2d 78; 50 C.J.S., Judgments, Sec. 843b; The Evergreens v. Nunan, 2 Cir., 141 F.2d 927, 152 A.L.R. 1187; 2 Freeman, Judgments, 5th ed., Sec. 771. In State at Information of Dalton ex rel. Tucker v. Mattingly, supra, the court examined the voluntary findings of fact by the trial court in a previous suit, which had been made a part of the record...