Hardy v. O'Pry

• Decision Date: 17 June 1912
• Citation: 102 Miss. 197,59 So. 73
• Parties: W. H. HARDY v. MRS. ALVIN O'PRY
• Court: Mississippi Supreme Court

59 So. 73

102 Miss. 197

W. H. HARDY v. MRS. ALVIN O'PRY

Supreme Court of Mississippi

June 17, 1912

March 1912

APPEAL from the circuit court of Harrison county, HON.W. C. WELLS JR., Special Judge.

Suit by Mrs. Alvin O'Pry against W. H. Hardy. From a judgment for plaintiff, defendant appeals.

The appellee was plaintiff in the court below, and appellant was defendant. The declaration is as follows:

"Mrs Alvin O'Pry, plaintiff, complains of W. H. Hardy defendant, in an action on promises, for that, whereas heretofore, to wit, on or about the 15th day of May, 1905, the said defendant employed said plaintiff as stenographer at and for the sum of sixty dollars per month; that said plaintiff remained in the employ of said defendant, under said contract, for the period of seven months; and defendant being thereby indebted to said plaintiff in the sum of four hundred and twenty dollars, and being so indebted to said plaintiff, in consideration thereof, afterwards, to-wit, on the day and year aforesaid, undertook and faithfully promised to said plaintiff to pay her the said sum of money when the said defendant should thereafter be requested, yet though often requested, the said defendant hath wholly neglected and refused to pay to said plaintiff the said sum of money, or any part thereof, to damage of defendant five hundred dollars.

"Second Count. And for that heretofore, to wit, December 15th, in the year 1905, the said plaintiff, at the like special instance and request of said defendant, had before that time done, performed, bestowed, and given of her work, labor, care, diligence, and attendance as stenographer of said defendant, defendant then and there undertook and faithfully promised said plaintiff to pay her so much money as she therefor reasonably deserved to have of said defendant, and when said defendant should be thereafter requested; and the said plaintiff avers that she reasonably deserved to have of said defendant the further sum of four hundred and twenty dollars, whereof the said defendant then and there had notice, nevertheless defendant hath not yet paid to the plaintiff the said sum of money, or any part thereof, to said plaintiff, although often requested so to do, by said defendant, to pay her the same, hath hereto wholly neglected and refused to the damage of plaintiff the sum of five hundred dollars. Wherefore she sues and demands judgment for said sum and costs of suit, and herewith files her bill of particulars, marked as Exhibit A, as a part of this complaint."

To this declaration, the defendant filed a plea of res adjudicata, and as an exhibit to said plea he filed a copy of declaration filed in another suit at a former term, which is as follows:

"Mrs. Alvin O'Pry, by her attorneys, complains of W. H. Hardy, defendant, for that, whereas, heretofore, to wit, on the day of May, 1905, at Hattiesburg, Mississippi, the defendant then and there being one of the code commissioners, appointed and commissioned as provided by law, together with others, to prepare the Mississippi Code of 1906, and the plaintiff, a stenographer, in consideration that the said plaintiff would enter into the employment of the defendant as his stenographer, to assist in and about preparing said Code, the said defendant then and there undertook and promised the plaintiff to employ her as his stenographer for a period of months, or for such length of time as would be necessary to complete said work in preparing said Code, and to pay plaintiff for such service in aiding her in securing an appropriation of sixty dollars per month for said work from the legislature of said state at its January session of 1906; that plaintiff, in consideration of such employment and salary, to be paid by and through the assistance of said defendant, on day of May, 1905, entered into the service of the defendant as such stenographer, and continued therein till on or about the day of December, 1905, when said Code was finished and delivered to the said legislature, said time thus spent in the service of said defendant being seven months, and that she (plaintiff) relying on the promise thus made with the defendant, whereby he was to assist her in obtaining said appropriation from the legislature for the seven months' work thus performed for the defendant at and for the sum of sixty dollars per month, aggregating the sum of four hundred and twenty dollars, applied to said legislature for said appropriation of said sum, and at the same time plaintiff called upon defendant to assist her in securing said appropriation, as he had agreed and contracted with plaintiff to do, whereupon he, the said defendant, without any cause known to plaintiff, willfully neglected, failed, and refused to render her any assistance in securing said appropriation, or to aid her in any way in the premises. To the contrary, he (defendant) then and there willfully, knowingly, falsely and maliciously represented to said legislature that he (defendant) had amply paid plaintiff for the work performed as aforesaid, thus violating in every particular his contract and promise whereby said services were rendered, and by his said false statement and representations, and breach of his said contract, plaintiff failed to obtain any appropriation from said legislature for said services, and by reason of the said breach of said contract by the said defendant plaintiff has been greatly wronged, and has suffered loss and damage to the sum of four hundred and twenty dollars. Wherefore plaintiff brings this suit, and demands judgment against defendant for the said sum and all costs in this behalf expended.

To the declaration in the former case a demurrer was filed by defendant, setting up the following grounds, to wit: "(1) That the said agreement alleged to have been entered into between parties, even if made, is against the public policy of the state, and, void, and no action could be based upon any alleged breach of same. (2) That it is not shown that the appropriation would have been made, even with the utmost of defendant's efforts in that behalf." This demurrer was sustained by the trial court, and on appeal the case was affirmed without written opinion. See 46 So. 415.

On the trial of the case at bar, the plea of res adjudicata was overruled, and the case proceeded to judgment in favor of plaintiff for the amount claimed. From this judgment comes this appeal.

Affirmed.

Green & Green, for appellant.

Counsel for appellee expressly fails to attempt to differentiate the case of Jacobs v. Insurance Company; Weathersby v. Pearl River Lumber Co., and Shaw v. The Laurel Oil & Fertilizer Company, all of which, we submit are directly upon the point at issue. On the contrary, he submits divers cases from our own report, which, we submit, are in each instance readily distinguishable from the case at bar, or in some instances positively favorable to appellant, wherein consider Agnew v. McElroy, 10 S. & M. There at page 554, Mr. Justice CLAYTON said:

"It is not at this day to be doubted, but that a judgment between the same parties, for the same cause of action, is conclusive between them. There are exceptions to the rule, as where the first action is not competent, where the plaintiff has mistaken his character, or where the judgment is given for faults in the declaration or pleadings. Hitchens v. Campbell, 2 Wm. Black. 830. The principal consideration is, whether it is to be precisely the same cause of action in both appearing by proper averments in a plea; or by proper facts stated in a special verdict or a special case. Ibid., 830.

"The recovery is prima facie evidence that the demand has been inquired into, but is not conclusive. The inquiry is, whether the same cause of action had been litigated and considered in the former action. The plaintiff who brings a second action, must not leave it to nice investigation to see whether the two causes of action be the same; he ought to show beyond all controversy, that the second is a different cause of action from the first in which he failed. Seddon v. Tutop, 6 T. R. 607; Bagot v. Williams, 3 Barn. & Cres. 235; 10 Eng. C. L. Rep. 62; Rice v. King, 7 Johns. 20.

"It is immaterial that the form of action is different, if the cause be the same, the judgment is conclusive, as a judgment in trover is a bar to an action of assumpsit for the value of the same goods. 4 Rep. 94; b: 2 W. Black. 827; 3 Ch. Pl. 929-n.

"This party is not precluded from showing that the latter suit is for another and different cause, if the fact be so. By pleading the former judgment specially, the plaintiff is driven to take issue on a single point, and admit or deny the judgment, or deny that it was for the same cause of action. 3 Ch. Pl. 929-n; also 1159.

"Tried by this standard, the replication in this instance was bad. It does not admit the judgment and deny that the cause of action was the same--but it denies, 'that the merits of the present suit were tried and determined in the former.' This does not come up to the point, for the true question is whether the merits of the second suit were involved, and might have been tried in the former action. If so, and the party failed, though his failure might have proceeded from some defect in the testimony, or some error in law, he cannot after judgment reinvestigate the same matter in another suit. The judgment is conclusive. No one shall be twice harassed for the same cause, is a venerable and wise maxim of the common law." See page 12, where it is expressly found that the merit, i. e., the right to recover because of public policy and the lobbying contract, was held not to exist.

If counsel can get any consolation out of the portion of this opinion quoted, he is at liberty so to do, and we especially challenge his...