Harlow v. Bartlett
| Decision Date | 05 April 1898 |
| Citation | 49 N.E. 1014,170 Mass. 584 |
| Parties | HARLOW v. BARTLETT et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S.L. Whipple and W.R. Sears, for plaintiff.
Bartlett & Anderson, for defendants.
There are two questions in this case: (1) Whether the decree, in the suit in equity brought by the plaintiff against the defendants and one Llewellyn H. Bartlett, is a bar to this action; (2) whether there is any evidence warranting a verdict for the plaintiff. The declaration contains two counts,--one in contract, and one in tort,--both for the same cause of action. The court ruled that the decree was a bar to the count in tort, but not to the count in contract, and to so much of this ruling as held that the decree was not a bar to the count in contract, as well as to the refusal to rule that on all the evidence the plaintiff could not recover, the defendants excepted. The bill of exceptions also presents a question relating to the admissibility of evidence; but the defendants have not argued it, and we treat it as waived.
The fact that the form of action was different in the former case from that in this, and that one of the defendants in that case is not a defendant in this, will not prevent the decree from operating as a bar, if the cause of action was the same and the case was tried on the merits, and the same question which is presented here was tried and determined there, or if the question now presented was in fact tried and determined in that proceeding, though the cause of action might not have been the same. French v. Neal, 24 Pick. 55, 61; Bigelow v. Windsor, 1 Gray, 299, 302; Foye v. Patch, 132 Mass. 105, 110, 111. There was contradictory testimony on the question whether the same issue which now is presented was in fact tried and determined in the former suit. But that question does not appear to have been submitted to the jury, nor does there appear to have been any request on the part of the defendants that it should be submitted to them. Unless, therefore, it appears from the pleadings that the cause of action in that case was the same as that set forth in the count on which this case was submitted to the jury, the request to rule that the decree operated as a bar was rightly refused.
Briefly stated, the cause of action set out in the bill in equity was that the present defendants, purporting to act as agents of the plaintiff in regard to the sale of certain property, and in regard to certain transactions relating thereto, described in said bill, conspired together, by means of false and fraudulent representations and dealings in regard to said transactions and property, to defraud her, and did defraud her, out of said property, and the proceeds thereof, of which it was alleged they and certain persons who were their instruments had possession, and which, in equity and good conscience, they held as trustees for the plaintiff. The prayer of the bill was that they should be compelled to transfer and assign said property to the plaintiff. The cause of action set out in the count in contract in the present case is that the plaintiff employed the defendants to sell certain property, being the same referred to in the bill in equity; that they negotiated the sale, which she, relying upon them, carried out, receiving, as security for payment of the sum for which...
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