Beall v. Pearre

• Decision Date: 26 January 1859
• Parties: GUSTAVUS BEALL v. GEO. A. PEARRE, Adm'r of ABRAHAM BROWN.
• Court: Maryland Court of Appeals

12 Md. 550

GUSTAVUS BEALL v. GEO. A. PEARRE, Adm'r of ABRAHAM BROWN.

Court of Appeals of Maryland.

January 26, 1859

A verdict and judgment upon the merits, in a former suit, is in a subsequent suit between the same parties, where the cause of action, damages or demand is identically the same conclusive against the plaintiff's right to recover whether pleaded in bar, or given in evidence under the general issue, and such prior verdict and judgment need not be pleaded by way of estoppel.

The decision of a court upon a claim in a former action is as effectual a bar to a recovery in another suit, upon the same cause of action, as that of a jury; and the fact that the court's decision was wrong, does not give the injured party the right to bring another suit upon the same claim, for he might have appealed, and had the error corrected.

As between the original parties to a bill or note, the total or partial want or failure of consideration may be relied on as a defence, and a partial failure avoids the note only pro tanto.

In a suit upon a promissory note, the maker, as a defence, relied upon and gave evidence of a breach of warranty in relation to certain barrels of beef, for which the note was given. The court, by an instruction given to the jury, decided against this defence, and the verdict and judgment were in favor of the plaintiff, for the full amount of the note. HELD:

That this decision by the court, though erroneous, upon the defendant's claim, was a bar to a subsequent action by him against the plaintiff, upon the same breach of warranty; for having failed to correct the error by appeal, he is not entitled to relief in a new suit.

An instruction to the jury, that if they believe " that the beef, in the declaration mentioned, was deposited with the plaintiff, to be sold on commission, then their verdict must be for the defendant," is erroneous, becouse nothing is said of the terms on which the jury might have believed the deposit was made.

APPEAL from the Circuit Court for Allegany county.

This was an action on the case brought on the 5th of September 1855, by the appellant against the appellee, to recover damages for an alleged breach of warranty in relation to sixty-nine barrels of beef, alleged to have been sold by the defendant's intestate to the plaintiff, in February 1846. The counts in the declaration, as well as the agreements of counsel, are fully stated in the opinion of this court. Pleas, non assumpsit, limitations, and plene administravit.

1 st Exception. The plaintiff, to support the issue on his part, under the agreement of counsel, read to the jury the evidence taken in a former suit, brought on the 19th of March 1847, by Brown against Beall, upon a promissory note, as found in the printed record in the chancery case of Beall vs. Brown, and then offered some additional testimony by witnesses who were examined in the former suit at law, relating, however, to the same matters involved in that suit. The defendant, to support the issue on his part, offered in evidence the proceedings, and verdict, and judgment, including the evidence set out in the bills of exceptions in the former suit at law on the note, and all the papers in that cause, including the prayers granted and rejected by the court, and also the agreement of counsel as to the pleadings. The defendant also offered in evidence the bill in chancery in the case of Beall vs. Brown, and the answer of Brown to the bill, and the exhibits and all the evidence in that case. The evidence and the proceedings in both these former suits, are sufficiently stated in the opinion of this court. The plaintiff then asked the court to instruct the jury, in substance, as follows:

1st. If the jury shall believe, from the evidence in the cause, that, on the trial at law between Brown and Beall, on the note in the case offered in evidence in this suit, Brown, by his counsel, insisted before the court and jury, that he had sold the beef in controversy to Beall, and had not left it with Beall to be sold on commission; and if they further believe that the jury found or believed that Brown had so sold the beef to Beall, and had not left it with him to be sold on commission, the defendant in this case cannot be permitted to deny that he did so sell the beef to Beall, and that it was not left by Brown with Beall on commission, because such a defence would impute to the present defendant, himself, a fraud upon the administration of justice in this court.

2nd. If the jury shall believe, from the evidence in the cause, that, in the trial of the case of Brown vs. Beall, in this court, on the note now offered in evidence, Brown, by his counsel, insisted and maintained before the court and jury, that he had sold the beef to Beall, and had not left it with him to be sold on commission, and that Brown, by his counsel, prayed the court to instruct the jury as follows, (here Brown's two prayers granted in the former trial, and set out in the opinion of this court, are inserted,) and that the court, in that trial, granted said prayers, and so instructed the jury; and if they shall further believe that the jury, in said suit on the note, believed and found, in making up their verdict in that case, that Brown had sold the beef to Beall, and that the beef was of some value, and that Beall, the then defendant, after he discovered that the representations so made to him, as stated in said prayer, were not true, dealt with the beef as his own, and sold it without returning the same, or offering to return it, to Brown, and that the jury, in that case, found a verdict for the full amount of the note and interest, that then the verdict and judgment in that case, on the note, does not preclude the plaintiff from recovering in this case.

3rd. If the jury believe, from the evidence in the cause, that the defendant's intestate sold the beef mentioned in the declaration to the plaintiff, and warranted it to pass as beef No. 1, in Baltimore market, with the bona fide expectation that the plaintiff would be able to sell it as beef No. 1 quality, and undertook and promised that if the plaintiff should not be able to sell as beef No. 1 quality, or at a price equal to the price at which the plaintiff had bought it, that he would be answerable to the plaintiff, and pay and make up to him any loss he might sustain on the beef, then the plaintiff's proper remedy upon such warranty, promise and undertaking, for the default of the defendant's intestate in the premises, is by suit, and that his right to recover in any such suit was not involved in the issue or issues in the suit heretofore brought by the defendant's intestate against the plaintiff, to recover the amount of the promissory note which the plaintiff had given him for the balance of the purchase money; and notwithstanding the recovery had by the defendant's intestate in his suit, against the plaintiff on said note, the plaintiff is not precluded from recovering, in the present action, such damages as the jury shall believe, from the evidence, the plaintiff sustained, in consequence of any breach of the aforesaid warranty by the defendant's intestate, and of any default by him in his aforesaid promise and undertaking.

4th. If the jury believe, from the evidence, that the defendant's intestate was a citizen of Virginia at the time he sold the beef, in the declaration mentioned, to the plaintiff, and that immediately after the sale, he returned to Virginia, beyond the limits of Maryland, until the time of his death, and that after making such sale, he was never afterwards within the limits of Maryland, excepting the time when he came as a suitor to attend the trial of a case heretofore pending in this court, wherein he was plaintiff and Beall was defendant, and that he only remained in this State whilst he was attending the term of the court at which such trial was pending, and that immediately after the jury had rendered their verdict in that trial, he returned to his home in Virginia, and there remained continuously till his death, then the defendant is not entitled to the defences set up by the pleas of limitations filed in this cause, unless they shall believe that the defendant's intestate, instead of returning to his home aforesaid, within a reasonable time after the conclusion of said trial, tarried and remained in this State over such reasonable time, and longer than it was necessary for him to prepare for and make his return journey, or unless they shall believe that more than three years have elapsed since the granting of letters of administration to the defendant on the estate of said intestate, and the commencement of this suit.

The defendant then offered the following prayers:

1st. If the jury shall believe from the evidence in the cause, that the defendant's intestate was within this State at the time of making the contracts, as stated in the first and second counts of the plaintiff's declaration, (if they shall believe such contracts to have been made,) and remained in the State a sufficient time to afford the plaintiff an opportunity of effectually suing him, and that the plaintiff was aware of such presence of said Brown in this State, and that more than three years have elapsed from the time of making said contracts to the time of Brown's death, then the plaintiff is barred by limitations, from recovering against the defendant under said first and second counts, even though the jury should believe from the evidence, that Brown, at the time of making such contracts and continuously up to the time of his death, resided beyond the limits of Maryland.

2nd. If the jury shall believe from the evidence in the cause, that after the causes of action mentioned in the declaration in this case accrued, Brown was...