Gayer v. Parker

• Decision Date: 24 October 1888
• Citation: 39 N.W. 845,24 Neb. 643
• Parties: GAYER v. PARKER ET AL.
• Court: Nebraska Supreme Court

24 Neb. 643

39 N.W. 845

GAYER

v.PARKER ET AL.

Supreme Court of Nebraska.

October 24, 1888.

Syllabus by the Court.

Ordinarily the test as to whether a former judgment is a bar to an action is to ascertain whether the same evidence will sustain both the present and former action.

If different proof is required to sustain two actions, a judgment in one of them is no bar to the other.

A. furnished certain lumber and other material to one B., on a contract that B. should purchase the lumber for a certain price, or might return the same by paying a stipulated sum for the use thereof. The lumber and other material was left in the possession of C., whereupon A. brought an action against C. upon the contract, and failed in the action, judgment being rendered in favor of C. A. thereupon brought an action against C. for conversion of lumber and other material. Held, that the former judgment was not a bar.

Error to district court, Gage county; BROADY, Judge.

Pemberton & Bush, for plaintiff in error.

Hazlett & Bates, for defendants in error.

MAXWELL, J.

In the year 1883 one A. Wiswell procured from the defendants 12,000 ft. of fencing lumber and other material, all being of the value of $260. The testimony shows that Wiswell desired the lumber for a temporary purpose, and had an option either to purchase it at a price stated, or return the material to the defendants, and pay them two dollars per thousand for the use of the lumber. There seems to have been some conversation between Wiswell and the plaintiff in error in regard to purchasing the lumber, but just what the conversation or the proposed arrangement was is not clear. The lumber and material being on the plaintiff's land, he used the same, whereupon the defendants brought an action against him for goods sold and delivered. On the trial of the cause they apparently failed in their proof to show privity of contract between themselves and the plaintiff, and the jury found in favor of the plaintiff herein. This was so manifestly in accord with the testimony that no appeal was taken. A second action was thereupon brought against the plaintiff herein for conversion of the material, and on the trial of the cause a verdict and judgment were rendered against him. The principal defense relied upon is a former adjudication in favor of the plaintiff, and therefore he is not liable. It is said in the plaintiff's brief, (page 4:) “In the case at bar, the testimony showed that the defendant, Gayer, got the property in question, and used it for his own benefit, changing its condition and character.”

A former verdict and judgment are conclusive only as to the facts directly in issue, and do not extend to facts which may be in controversy, but which rest on evidence, and are merely collateral. It must appear that the matter set up as a bar was in issue in the former case. The test as to whether the former judgment is a bar generally is whether or not the same evidence will sustain both the present and the former action. Clegg v. Dearden, 12 Q. B. 576; Crockett v. Routon, Dud. (Ga.) 254; Hunter v. Stewart, 31 Law J. Ch. 346; Taylor v. Castle, 42 Cal. 371;Cannon v. Brame, 45 Ala. 262; Percy v. Foote, 36 Conn. 102. If different proofs are required to sustain the two actions, a judgment in one of them is no bar to...