Hall v. Zeller

• Decision Date: 13 March 1889
• Citation: Hall v. Zeller, 17 Or. 381, 21 P. 192 (Or. 1889)
• Parties: HALL v. ZELLER et al.
• Court: Oregon Supreme Court

21 P. 192

17 Or. 381

HALL v. ZELLER et al.

Supreme Court of Oregon

March 13, 1889

Appeal from circuit court.

Action on a contract by James S. Hall against Zeller Bros. Judgment for plaintiff, and defendants appeal.

(Syllabus by the Court.)

Where a fact has been once litigated in a court of competent jurisdiction, the judgment rendered therein forever estops the parties and their privies from again litigating the same fact.

In an action where there are numerous issues and a general verdict it must be intended that the verdict is as comprehensive as the issues, and concludes every question of fact at issue.

Where some specific fact or question has been adjudicated or determined in a former suit, and the same fact or question is again put in issue on a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit without regard to whether the cause of action is the same in both suits, or not.

Watson Hume & Watson, for appellants.

Doud &amp McCoy, for respondent.

STRAHAN J.

For his first cause of action the plaintiff alleges that on the 4th day of March, 1887, plaintiff and defendants entered into an agreement in writing, by the terms of which it was in substance agreed between said parties, as follows: That the plaintiff was to furnish a mill-site, and to furnish logs to the same for the sum of $2.75 per 1,000 feet, of good quality fir, such as the railroad company will accept for ties, and to the amount of 6,000 feet per day, in all about 800,000 feet; that defendants were to erect a saw-mill on said site, and to pay said price for the quality of timber above named, payments to be made as the railroad company makes them on any sales that may be made, and when the above amount of lumber has been sawed, to quit, and deliver up the said premises in reasonable order, the mill to be moved away by the defendants, leaving the slabs that are not used on the premises. It is then alleged that the mill was erected on said premises under said contract, and plaintiff cut and furnished a considerable amount of timber, and delivered the same under said contract to the said defendants, and, on the 25th day of October, 1887, the defendants having neglected and refused to pay plaintiff for so much of said timber so delivered, which, by the terms of said contract, was at that time due, commenced an action against the defendants to collect the same, in connection with several causes of action; that, since said action was commenced against said defendants, they have sold 54,000 feet more of the timber so delivered to them by the plaintiff under said contract; and that by the terms of said contract the same has become due and payable to the plaintiff at the rate of $2.75 per 1,000 feet, and defendants have neglected and refused to pay, etc. A second cause of action is for negligently and wantonly breaking down a considerable portion of plaintiff's fence, and for refusing to repair the same, to plaintiff's damage in the sum of $20. A third cause of action is for wantonly and maliciously destroying about 20 cords of slabs, contrary to the terms of said contract, to plaintiff's damage in the sum of $20, and for selling 10 cords of slabs, to plaintiff's damage in the sum of $10

The defendants demurred to the complaint, upon several grounds which being overruled they filed their answer. By their answer the defendants deny that they have sold 54,000 feet, or any greater amount than 46,000 feet, of the timber delivered to them by the plaintiff under said contract, since the commencement of the former action mentioned in the complaint; and they deny that any other or greater sum than $126.50 is due now, or ever was due, the plaintiff thereon. Each of the other causes of action are specifically denied. The answer then alleges, by way of counterclaim to the causes of action, stated in complaint, that over 6,000 feet of logs delivered to them by plaintiff under the written contract set out in the complaint were not of good quality of fir, such as the railroad company would accept for ties, and were not of good quality fir, such as were fit or suitable for railroad ties, but were unsound, and decayed, and that the lumber manufactured therefrom was unsalable at the ordinary rate, but that the defendants were compelled to sell the whole 6,000 feet for the sum of $20, which was the highest price that could be procured for the same, and all it was reasonably worth; that the market value of good merchantable ties was $8 per 1,000 feet, and that said railroad company would have accepted said 6,000 feet of ties, and paid that sum therefor, had the same been of suitable material; that said 6,000 feet of lumber are contained in said 46,000 feet of lumber sold since the commencement of said previous action; and that by reason of said loss defendants have been damaged in the sum of $28. For a second counter-claim the defendants allege, in substance, as follows: That on or about the 1st of March, 1887, they entered into an agreement with the plaintiff, wherein and whereby they promised and agreed to and with the plaintiff to furnish a steam saw-mill and set the same up on the plaintiff's land, about 10 miles distant from Portland, Or., and begin to run and operate said saw-mill on said land within a reasonable time from said date, and saw and manufacture at said mill all the lumber and timber at said place which he might require for a barn, fencing, and other improvements on his said land, and not less than 70,000 feet, at the usual market prices therefor. And the plaintiff, in consideration of the promise and agreement of the defendants, did promise and agree to and with the defendants to take and receive from them at their said mill, and as soon as the same could be conveniently sawed and manufactured thereat, not less than 70,000 feet of lumber and timber for said barn and other improvements on his said land, and pay the defendants the usual market price therefor. That, in consideration of said promise and agreement on the part of the plaintiff, and in reliance thereon, the defendants did, at great expense, procure a steam saw-mill, and erect the same on the plaintiff's said land, and begin to work and operate the same, according to said agreement, on or about the 1st of June, 1887. That thereafter, and prior to April 1, 1888, at divers times, and whenever required by plaintiff, the defendants sawed and manufactured at their said saw-mill on said land, large quantities of lumber and timber for the plaintiff for his said barn and other improvements thereon, and upon his orders therefor, under said agreement, amounting altogether to 11,000 feet, delivered by them to the plaintiff under said agreement, and accepted by him. And during said entire period, defendants were able, ready, and willing to saw and manufacture the remainder of said 70,000 feet, namely 59,000 feet, for the plaintiff, according to the terms of said agreement, and repeatedly notified and requested the plaintiff to give them his orders therefor, which plaintiff wholly failed and neglected and refused to do, except said 11,000 feet. And the plaintiff notified the defendants that he would not furnish any further orders or bills for lumber or timber, or receive any further quantity thereof upon said agreement, and on or about said April 1, 1888, notified...