Donahue v. McCosh

• Decision Date: 23 October 1890
• Citation: 46 N.W. 1008,81 Iowa 296
• Parties: DONAHUE v. MCCOSH.
• Court: Iowa Supreme Court

81 Iowa 296

46 N.W. 1008

DONAHUE

v.MCCOSH.

Supreme Court of Iowa.

Oct. 23, 1890.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Action entitled as in equity to recover an amount claimed to be due under a contract dissolving a partnership between plaintiff and defendant, and for certain items alleged to have been omitted from the settlement of said partnership through fraud, accident, and mistake. The defendant answered pleading a former adjudication (30 N. W. Rep. 14) as a bar to plaintiff's action, and denying that anything was due to plaintiff under the contract; also denying that the items named were omitted from the settlement through fraud, accident, or mistake, and alleging that certain other items were omitted from the settlement through accident and mistake, and asking an accounting. The case was tried to the court, and the plea of former adjudication sustained, except as to plaintiff's claim on the contract. Judgment was rendered in favor of plaintiff on his cause of action on the contract. Both parties appeal.P. Henry Smith & Son, for plaintiff.

Power & Huston, for defendant.

GIVEN, J.

1. The defendant moved to transfer the case to the law docket. This motion was filed some time before the trial, but not ruled upon until the entering of the final decision, when it was overruled, to which defendant excepted. It does not appear that this motion was called to the attention of the court before the trial began, nor that the defendant made any objection to proceeding to try the case in the manner in which it was tried. Each party asks an accounting as to items omitted through fraud, accident, or mistake, from a settlement had between them then, either of which accountings involve extended investigations of books, invoices, etc., containing many items. Under these circumstances, the motion to transfer was properly overruled.

2. The further discussion may be resolved into the single inquiry whether the plaintiff's causes of action, or either of them, are barred by a former adjudication between these parties. The rule is well established in this state that “a prior adjudication is a bar, not only to all matters actually in issue, but which might or should have been alleged in the pleadings.” Lamb v. McConkey, 76 Iowa, 47, 40 N. W. Rep. 77;Philips v. Gephart, 53 Iowa, 396, 5 N. W. Rep. 683. In Freeman on Judgments (2d Ed. § 249) it is said: “An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated, and have had decided, as incident to or essentially connected with the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense.” While the former adjudication is conclusive as to all matters actually in issue, it is not as to matters which might have been put in issue in the case, unless it was incident to, or essentially connected with, the subject-matter of the prior litigation. One having two independent causes of action against the same party, by suing upon one would not thereby be barred from afterwards bringing his action upon the other, though both might have been embraced in the first action. To determine whether the matters herein claimed were in issue, or were incident to, and essentially connected with, the subject-matter of the former litigation, we must look to the record in both cases.

3. A contract of dissolution fixing the terms upon which the partnership was to be settled was executed June 18, and another July 24, 1883. The latter does not supersede, but is supplementary to, the former. By these contracts the partnership was dissolved, and terms agreed upon for the division of the property and settlement of the partnership. Plaintiff was to take the stock and business of the firm at the inventory price, at cash value, and all the bills and accounts receivable as held June 30th. The bills receivable were divided into good and doubtful, the good being embraced as assets. Plaintiff was to exercise diligence in collecting both, and to pay to defendant one-half of the amount collected on doubtful claims, defendant to pay plaintiff one-half of all claims listed as good that proved to be uncollectible in a year. Defendant agreed to purchase the shares of stock owned by plaintiff in the Hawkeye Manufacturing Company and in the Hawkeye Steel Fence Company, “at their value, and accrued profits,...