Edward F. Gerber Co. v. Thompson

• Decision Date: 14 October 1919
• Citation: 84 W.Va. 721
• Court: West Virginia Supreme Court
• Parties: Edward F. Gerber Company v. D. Scott Thompson

84 W.Va. 721

Edward F. Gerber Company

v.D. Scott Thompson;

Supreme Court of Appeals of West Virginia.

Submitted October 7, 1919.

Decided October 14, 1919

1. Judgment Power of Attorney to Confess Judgment Must State Amount.

A power of attorney purporting to give authority to confess judgment must state the amount for which such judgment is to be confessed, or at least contain facts from which such amount can be definitely ascertained. (p. 724).

2. Same Power of Attorney to Confess Judgment for Amount Due Invalid.

A paper purporting to confer authority to confess judgment for such amount as may be found due from one party to another, upon their dealings in the future, is invalid because of the uncertainty and indeflniteness of the amount for which such con confession of judgment is attempted to be authorized. (p. 724).

H. Same Personal Service Necessary to Personal Judgment in Attachment Suit.

A judgment in an attachment suit where no personal service is had upon the defendant therein has no other effect than to reach the property which the non resident defendant may have in the state, and after such property is exhausted such judgement is of no force or effect. (p. 725).

Same Conclusiveness as to Parties and Privies.

A judgment rendered by a court of competent jurisdiction after service of process upon the parties to be affected thereby is conclusive, not only upon those who are actually parties thereto, but also upon all who are in privity with them. (p. 727).

5. Same--.Not Ees Judicata as to Interest of Third Party Before Litigation.

For the purpose of the application of the rule of res judicata to persons because of their privity with the parties to a suit, it must appear that the estate or interest of such a one was acquired from or through such actual party after the litigation. If his interest in the cause of action or the subject-matter of the litigation was acquired prior to the litigation he will not be bound by the judgment, (p. 727).

6. Same -For Money Not Conclusive in Action by Defendant for Debt Not Litigated.

A judgment rendered in a suit for the recovery of money 'is not conclusive of the defendant's right to maintain a subsequent suit to recover a debt claimed to be due to him by the plaintiff in the former suit, when such claim was not pleaded or: relied upon therein. The adjudication in such former suit where the recovery of money is sought is only conclusive of the matters actually put in issue therein, and such other matters as are defensive to the claim set up, and does not bar a suit upon a different claim which either of the parties may have against the other. (p. 727).

7. Trial Issues Raised by Pleas in Bar Should be Tried Together. Where there is more than one issue upon pleas in bar in an action at law, they should all be tried together. (p. 727).

Appeal and Error Where Finding for Defendant on One Issue Erroneous Remand for Trial of Remaining Issues. Where, however, the court below with the assent of the parties proceeds to the trial, without a jury, of only one of such issues, and erroneously finds for the defendant upon such issue, and renders judgment accordingly, this Court will reverse the same, set aside the findings of the court below, and remand the cause for a trial upon the remaining issue, or issues. (p. 728).

Terror to Circuit Court, Harrison County.

Suit by the Edward F. Gerber Company against D. Scott Thompson. Judgment for defendant on plea of res judicata alone, and plaintiff brings error.

Reversed and remanded. Robert R. Wilson, for plaintiff in error. Clarence B. Sperry and John C. Southern, for defendant in error.

Ritz, Judge:

On the 3rd of January, 1913, the defendant D. Scott Thompson entered into a contract with the Pennsylvania Sales Corporation, assignor of the plaintiff in this case, by which he became the agent of that concern for the sale of Michigan automobiles and their accessories in certain designated territory. The provisions of the contract, so far as they are material to the determination of the questions involved here, are that Thompson deposited one thousand dollars with the Sales Corporation to be held by it as security for the payment of any amount which he might owe, and to be refunded to him by crediting it on the automobiles sold by him, at the rate of one hundred dollars for each of such machines so sold. The contract further fixed the price at which such machines and their accessories were to be sold, and the compensation to be allowed to Thompson for making the sales. It further provided that in case of the failure of Thompson to remit the invoice price of the automobiles and parts shipped and sold under the agreement at the time provided in the contract he, the said Thompson, authorized any attorney of a court of record selected by the other party to confess judgment in any court of law of competent jurisdiction for the amount of any unpaid balance. This suit was brought by Edward F. Gerber Company, a corporation, assignee of the Pennsylvania Sales Corporation, to recover a balance alleged to be due by the said Thompson upon the contract aforesaid. An affidavit was filed with the declaration in which was stated the amount which the plaintiff claimed the right to recover. When the case was called for trial the plaintiff by its attorney appeared and moved to be permitted to confess judgment in favor of the plaintiff against the defendant for the sum claimed in the affidavit. The defendant resisted this motion and asked to be allowed to file his counter affidavit and plea of non assumpsit. The court below declined to allow plaintiff's attorney to confess judgment, but permitted the counter affidavit to be filed, together with the plea of non assumpsit, Subsequently the defendant filed his special plea of res judicata. This special plea is based upon an attachment proceeding instituted by the defendant against the Pennsylvania Sales Corporation in December, 1913. It appears that the defendant instituted in the circuit court of Harrison county an action in assumpsit in December, 1913, to recover the one thousand dollars deposited by him, under the contract. No service of process was had upon the defendant, but the jurisdiction was sustained by levying an attachment sued out in said cause on one of the machines shipped to Thompson for sale. Without any appearance on behalf of the Sales Corporation a judgment was taken condemning the said machine to sale in satisfaction of plaintiff's demand. It was sold, the sale confirmed, and the proceeds thereof paid over to the plaintiff, and this proceeding Thompson now sets up as res judicata in this suit. A trial was had in the court below upon the issue raised by the plea of res judicata alone, and the court found thereon in favor of Thompson and rendered judgment accordingly, from which judgment this writ of error is prosecuted.

The plaintiff's first contention is that the court erred in not granting its motion to confess judgment by its attorney in its favor against the defendant because of the provision in the contract referred to. This contract created the defendant Thompson an agent for the sale of the Sales Corporation's goods at an agreed price. At the time it was entered into there was no amount due by Thompson, and the provision authorizing the confession of judgment simply provided that when any amount might become due and unpaid, in accordance with the terms of the contract, the plaintiff, through its attorney, might confess judgment in its favor. It will be observed that there is nothing in the contract from which such amount can be determined. It depended entirely upon the future dealings of the parties. Ordinarily an authority to confess judgment ought to be as certain in its terms as the judgment itself. The amount for which such judgment is to be confessed should be clearly stated, or else facts and figures given in the power itself from which the amount can be certainly determined. Such is not the case here, and for that reason alone the alleged power of attorney conferred no authority to confess judgment for any amount. 23 Cyc. 704; 15 R. C. L. 653; Bennett v. Haley, 142 Pa. St. 253; Little v. Dyer, 138 Ill. 272; Fortune v. Bartolomei, 164 Ill. 51; Holden v. Bull, 1 Penrose & Watts (Pa.) 460; Connay v. Halstead, 73 Pa. 354; 11 Ency. of Pleading & Practice, 981. The court did not err in denying plaintiff's motion to confess judgment and permitting the defendant to file his counter affidavit and plea.

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