Child v. McClosky
| Decision Date | 31 December 1900 |
| Parties | CHILD v. McCLOSKY. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Spink county; A. W. Campbell, Judge.
Action by T. W. Child against J. E. McClosky. From a judgment for defendant, plaintiff appeals. Affirmed.
W. F Bruell (S. R. Child, of counsel), for appellant. Sterling & Morris, for respondent.
This is an action to recover the amount of a promissory note purporting to have been executed by one Wood, and payable to the order of the defendant, and transferred to the plaintiff by an agent of the defendant. Judgment was directed for the defendant, and the plaintiff appeals.
The plaintiff alleges in his complaint "that on or about March 30, 1896, defendant, by his agent, Robert McClosky indorsed to this plaintiff one certain promissory note purporting to have been made by one Sylvester A. Wood, and payable to the order of defendant,--said note being for the sum of $75, bearing date September 7, 1895, due November 1 1896, bearing interest at 10 per cent. per annum; that defendant received, through his agent, in exchange for said note, one Bradley gang plow, which was used on defendant's farm, and accepted by defendant personally, and is still used on said farm." The plaintiff further alleges that due demand for payment was made, and demands judgment for $96 and costs. The defendant, in his answer, denies the allegations of the complaint, and pleads: "For a further and separate answer and defense, defendant alleges that in an action heretofore had in the circuit court in and for Spink county, South Dakota, wherein T. W. Child, above named, was plaintiff, and J. E. McClosky, above named, was defendant, the issues herein presented were fully raised and tried, and were fully adjudicated, and a judgment rendered in said action in favor of the defendant herein and against said plaintiff; that the said action tried as aforesaid involved the same transaction upon which this alleged claim for $96 is set up, and embraced all the issues and points so raised, and was decided upon the merits of said cause, as the same appear in this action." It appears from the evidence in this case that a prior action was commenced by the plaintiff against the defendant to recover $65, the value of a gang plow alleged to have been sold by the plaintiff to the defendant, which action was tried by a jury, and resulted in a verdict for the defendant. It further appears that in that action evidence was offered tending to prove that the plaintiff sold and delivered to one Robert McClosky, the father of the defendant, who had charge of a farm in Spink county belonging to his son, a plow of the value of $65, and received, either in payment for, or as security for the payment for, said plow, the promissory note now in controversy, with the defendant's guaranty indorsed thereon by the father in the name of his son, the defendant. There was also evidence tending to prove that Robert McClosky was authorized by his son to purchase said plow, and transfer to the plaintiff therefor the promissory note sued on in this action. The defendant in that action denied all the allegations of the plaintiff's complaint, and introduced evidence tending to prove that Robert McClosky had no authority, as his agent, to purchase the plow, and this seems to have been the view adopted by the jury by their verdict in favor of the defendant. As will be observed, the present action is to recover the amount of the promissory note so transferred by Robert McClosky to the plaintiff at the time it is claimed he purchased said plow, as the plaintiff, in his complaint, states that the note was received by him in exchange for one gang plow, accepted by the defendant, etc.
It is contended by the appellant in the case at bar that the agency of Robert McClosky in transferring this note to the plaintiff was not in issue in the former action, as the issues in that case were as to whether or not Robert McClosky purchased the plow for himself, or as the agent of the defendant, and whether or not the note was received in payment of the plow or as collateral security, and that therefore the judgment in that action does not constitute a bar to this action. The appellant further contends that, in order that a judgment should constitute an estoppel, there must be identity of the subject-matter and identity of causes of action, and that both are absent in this case; that an adjudication of fact, other than an issuable fact, cannot estop in another action; and that the issuable facts are those only put in issue by the pleadings. It is further contended on the part of the appellant that neither the subject-matter nor the thing sued for was the same in the two actions, nor is there any identity of issues; that the subject-matter of the first action was the contract by respondent to pay appellant for the plow, and that the thing sued for was the consideration so agreed to be paid, while the subject-matter in the present action is the contract by respondent to pay appellant the amount of the note sued for, if not paid by the maker thereof, and that the thing sued for is the amount due upon the note; that the question in the first action was whether plaintiff was entitled to recover of defendant the purchase price of the plow, while in the case at bar the question is...
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