Brunner v. Cook

• Decision Date: 16 November 1922
• Citation: 114 S.E. 650
• Court: Virginia Supreme Court
• Parties: BRUNNER. v. COOK et al.

114 S.E. 650

BRUNNER.

v.COOK et al.

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

Appeal from Circuit Court of City of Roanoke.

Suit by W. C. Brunner against J. A. Cook and others. Decree for defendants, and plaintiff appeals. Affirmed.

Jas. A. Bear, of Roanoke, for appellant.

Morris L. Masinter and C. S. McNulty, both of Roanoke, for appellees.

PRENTIS, J. The appellant filed his bill in the circuit court of Roanoke city against J. A. Cook and G. W. Austin, appellees, in August, 1919, alleging that, as a dealer in lumber and building materials, he supplied Austin, as general contractor, with material for the construction of a building for Cook, for which Austin became indebted to him in a considerable sum, and that by reason of ah accounting had between Austin and Cook, the owner, on or before October 8, 1917, Austin gave an order or assignment in writing for the sum of $1,533.88 and delivered it to Cook, with directions to pay the appellant that sum of money on account of such indebtedness, that notice of the assignment was received by Cook, and that on that date and afterwards he owed Austin a sufficient amount to pay off and discharge that sum. He prayed for an accounting between Cook and Austin and for a judgment for the amount found to be due by virtue of that assignment, and for general relief.

To this bill Cook filed his plea of res judicata, setting up these facts: That theretofore, in March, 1918, the appellant had filed his bill in the corporation court of the city of Roanoke against these defendants, alleging the same building contract, the indebtedness to him for lumber and building material furnished for the building of the same bouse; that he had a mechanic's lien thereon which was valid under the Virginia statute; that there was a personal liability upon the owner, Cook, for the balance claimed by him to be due for labor and material furnished in the construction of the house, and that Cook was also liable to him because of the order for $1,533.88, which amount had been assigned to him by Austin, the general contractor; that to this bill the defendant Cook had filed a demurrer, which the court sustained and July 12, 1918, dismissed the cause upon the ground that the complainant was not entitled to maintain the bill; that thereafter, on July 30, 1918, the complainant moved the trial court to be allowed to amend the seventh paragraph of his original bill, making more specific allegations as to such order and assignment; that the court refused to permit such amendment and entered a final decree sustaining the demurrer to the bill; that thereupon the appellant presented his petition for an appeal from that decree to this court; and that his appeal was denied.

All of these facts sufficiently appear from the record, and the trial court, being of opinion that the matters alleged in the complainant's bill have been heretofore fully adjudicated in the former suit, as shown by the defendant's plea, entered a decree striking the cause from the docket, thus sustaining the plea of res judicata. From this decree this appeal is taken.

The only question involved here then is whether or not the plea of res judicata is a bar to the prosecution of this suit.

There appears to be some confusion of thought and expression in many of the cases, indicating hopeless inconsistency; that is to say, there are expressions to the effect that all of the issues which were tendered and might have been decided in the first suit are presumed to have been determined, as well as expressions to the effect that only those issues which were specifically decided in the first suit are finally concluded by that judgment, and that to sustain or defeat the plea evidence may be introduced to establish the precise issues which were decided in the first suit. We believe it to be manifest that these apparently inconsistent statements grow out of the failure to draw the distinction which has been so clearly drawn by the Supreme Court of the United States and many other courts.

In Cromwell v. County of Sac, 94 U. S. (4 Otto) 351, 24 U. Ed. 195, this is said:

"In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned as though the defenses never existed. The language, therefore, which is so often used,...