Bertrand v. Francis Bingham's Adm'x.

• Decision Date: 01 January 1855
• Citation: 13 Tex. 266
• Parties: THOMAS L. BERTRAND v. FRANCIS BINGHAM'S ADM'X.
• Court: Texas Supreme Court

13 Tex. 266

THOMAS L. BERTRAND

v.FRANCIS BINGHAM'S ADM'X.

Supreme Court of Texas.

1855.

Appeal from Brazoria. Action by the appellant, on a promise in writing by the appellee, to pay money to Edwin Waller or order, assigned to Thomas L. Bertrand and Gustavus A. Bertrand, assigned to Thomas L. Bertrand. This action was commenced on the 26th of February, 1851. On the 21st of February, 1848, one Jonathan D. Waters had sued the said T. L. and G. A. Bertrand on a promissory note, as assignee of the present defendant, who was the payee in the note. The Bertrands being then the holders of the claim now sued on, pleaded it in set-off, alleging that the assignment of the note to Waters was colorable only, or that at all events he had notice of their set-off when he obtained the note. There was a trial by jury in that case, and a verdict and judgment in favor of Waters for the full amount of the note. This judgment was pleaded by the defendant as a bar to this action. The plea was not excepted to, but at the trial the plaintiff offered to prove by parol evidence that the claim now sued on, although pleaded in the said former action, was not introduced in evidence, but was withdrawn and not submitted to the jury, which the court refused to permit, and instructed the jury that if they were “satisfied from the testimony that the claim sued on is the one pleaded as a credit in the case of Jonathan D. Waters v. T. L. & G. A. Bertrand, and that said T. L. Bertrand, one of the defendants in that suit, is the plaintiff in this, then the plaintiff is barred by said plea and suit from recovering on the same in this suit.” Verdict and judgment for the defendant.

D. D. Atchison, for appellant. We contend that to bar a cause of action by former judgment the former suit must have been between the same parties or their privies, and on the same points. (1 Stark. Ev. 217; Cheatum v. Chambers, 6 Rand. 86; Moore v. Cason, 1 How. Miss. 53;Eastman v. Cooper, 15 Pick. 276; Many v. Harris, 2 J. R., 24; 1 Martin, 316; Neafir v. Neafir, 7 Johns. C. R., 1.) The court erred in not allowing the appellant in the court below to show by parol testimony that the obligation now sued on was withdrawn by leave of the court and the counsel for Waters in the case referred to. (Jackson v. Swartwout, 8 Johns. R., 383; Philips v. Berrick, 16 Johns. R., 136; Wood v. Jackson, 8 Wend. 9.)

J. W. Harris, also for appellant.

J. H. Bell, for appellee.

WHEELER, J.

There is and can be no controversy as to the rule of law invoked by the defendant; that is, that a matter once litigated and determined by competent authority cannot a second time be brought in controversy between the same parties. In the concise and perspicuous language of Lord Chief Justice De Grey, in the Duchess of Kingston's case, so universally quoted with approbation: “The judgment of a court of concurrent jurisdiction, directly upon the point is, as a plea, a bar; or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court.” But to give a judgment such effect it is an essential element in the rule that there be an identity of parties. For it is a principle universally acknowledged that no one can, in general, be bound by a judgment, unless he be a party to the suit, or be in privity with the party. (1 Stark. Ev., 217 n.) “It is (says Starkie) a general rule that a verdict shall not be used as evidence against a man where the opposite verdict would not have been evidence for him; in other words, the benefit to be derived from the verdict must be mutual. This (he adds) seems to be no more than a branch of the former rule, that to make the judgment conclusive evidence the parties must be the same; for then the benefit and...