Harris v. Whitworth

• Decision Date: 17 May 1948
• Docket Number: 4-8528
• Citation: 211 S.W.2d 101,213 Ark. 480
• Parties: Harris v. Whitworth, Administrator
• Court: Arkansas Supreme Court

211 S.W.2d 101

213 Ark. 480

Harris v. Whitworth, Administrator

No. 4-8528

Supreme Court of Arkansas

May 17, 1948

Appeal from Mississippi Probate Court, Chickasawba District; Francis Cherry, Judge.

Reversed.

W Leon Smith, for appellant.

Marcus Evrard, for appellee.

OPINION

Smith J.

The present appeal is a continuation of the case of Harris v. Whitworth, Adm., reported in 210 Ark. 198, 194 S.W.2d 1017, the style of that case and this one being the same.

As appears from the former opinion, and from the record in the instant case, one C. H. Harris had attained the advanced age of eighty-eight years at the time of his death on March 19, 1945. He owned at the time of his death two farms, some city property, and valuable personal property, including two separate bank accounts, one of $ 12,000 and the other of $ 20,000, and United States bonds having a maturity value of $ 5,000. He was survived by two sons and two daughters. Frank Whitworth was appointed administrator of the estate.

Ancel Harris, one of the sons, who is the appellant here and was the appellant in the former cases, filed suit against the administrator in which he alleged that he and his father had entered into a partnership agreement in 1921 to operate as partners the farm property then owned by his father, and certain city property, also owned by his father, and were to share in the profits and losses of the partnership, which relation continued until the death of his father, but that at the instance of his brother Gordon, and his sisters, Mrs. Burks and Mrs. Nation, an administrator had been appointed, who had wrongfully taken possession of all money and all of the personal property. He alleged that as surviving partner he was entitled to the possession of these assets for the purpose of winding up the partnership affairs, and that his demand for possession of this property had been refused. He prayed that the administrator be enjoined from listing this property as assets of the estate, and that the administrator be required to surrender the partnership assets to him.

Thereafter on May 11, 1945, appellant filed another suit against his brother and sisters, in which he sought specific performance of an alleged oral contract with his father, made in 1921, by which, as a part of the partnership contract, his father agreed to convey to him the smaller of the two farms, comprising 120 acres. Certain other facts are recited in the former opinion, which were developed in the instant case, and will be repeated here. Both cases were dismissed for the reason that the allegations of the complaints were not sufficiently established by the testimony, and the separate decrees in those cases were affirmed on the appeal to this court on the former appeal, for the reason that we were unable to say that the findings of fact by the court were against the preponderance of the evidence.

The decrees mentioned were rendered Feb. 1, 1946, but before they had been decided by this court, appellant filed on April 1, 1946, the claim which is the basis of this suit. In this claim it was alleged that the intestate, claimant's father, was indebted to him in the sum of $ 40,000 for services rendered by him to his father. Many witnesses testified and a large record was made on the hearing of this claim. Practically the same witnesses testified at that hearing as had testified at the original trial and in the final decree from which is this appeal, the court approved the action of the administrator in disallowing the claim. The court made only the general finding that the testimony was insufficient to support the claim.

No formal plea of res judicata was interposed, but it is insisted that the original decree which this court affirmed on June 30, 1946 (Harris v. Whitworth, Adm., supra), is conclusive of this litigation, for the reason that substantially the same testimony was heard at the first trial which was offered at the second trial.

The holding and the effect of the former opinion was that appellant had not established the existence of a partnership with his father, nor had he proved a contract with his father to convey to him the smaller farm. There was no finding as to what services appellant had rendered his father, or the value thereof, as the pleadings did not raise that issue. It is true that practically the same testimony was offered in both cases to obtain the relief prayed in each case, but it is true also that the relief now prayed was not asked in the former case. It is true also that the parties were not the same. In appellant's first suit the administrator only was a party, and in his suit for specific performance, the administrator was not a party.

At the time of the filing of the suits first mentioned and at the time of the rendition of the decree by the Chancellor, in those cases, no claims had been filed with the administrator as provided and required by §§ 101 and 105, Pope's Digest, for the allowance of a claim against an estate. These statutes provide the procedure where one seeks to enforce a claim against an estate and their provisions had not been invoked until the present suit was filed.

At § 1256, p. 847, 34 C. J., it is said: "Causes of action which are distinct and independent, although growing out of the same contract, transaction, or state of facts, such as a claim for a sum due for work performed under a contract and a claim for damages for its breach, may be sued upon separately, and the recovery or judgment for one of such causes of action will not bar subsequent actions upon the others." Among the numerous cases cited in the note to this text are our cases of Davis v. Dickerson, 137 Ark. 14, 207 S.W. 436, and Warmack v. Askew, 97 Ark. 19, 132 S.W. 1013. In the case last cited a suit was brought upon two promissory notes. The defense interposed was that the notes were given for the purchase price of a patented article, which were void, for the reason that they did not show that fact upon their face. After the expiration of three years from the date of same, the plaintiff amended his complaint to sue on the account. It was held that the amended complaint stated an entirely new and distinct cause of action, and was barred by the Statute of Limitations, notwithstanding the fact that the original suit was filed within three years after the cause of action accrued. In the opinion last cited it was said:

"In the case of Roth v. Merchants' & Planters' Bank, 70 Ark. 200, 66 S.W. 918, 91 Am. St. Rep. 80, the court held that the failure to comply with the statute in regard to the execution of a note given for a patented machine, implement, substance or instrument does not affect the validity of the sale, but only renders the note absolutely void; and that an adverse judgment in a suit on the note is no bar to an action upon the contract of sale. See, also, Tillman v. Thatcher, 56 Ark. 334, 19 S.W. 968."

In the Roth case, supra, Judge Battle quoted from the case of Russell v. Place, 94 U.S. 608, 24 L.Ed. 214, as follows: "To render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be cancelled was necessarily tried or determined, -- that is, that the verdict in the suit could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and determination of the matter."

Following that statement Judge Battle then said: "In Shaver v. Sharp County, 62 Ark. 78, 34 S.W. 261, it is said: 'That which has not been tried cannot have been adjudicated. . . . That which is not within the scope of the issues presented cannot be concluded by the judgment.' See, also, Dawson v. Parham, 55 Ark. 286, 18 S.W. 48; McCombs v. Wall, 66 Ark. 336, 50 S.W. 876; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; Davis v. Brown, 94 U.S. 423, 24 L.Ed. 204.

"The same rule obtains as to cross-claims, set-offs and recoupments. The defendant in an action against him is not bound to set up such claims, if he has them, but it is generally optional with him to do so or not. McWhorter v. Andrews, 53 Ark. 307, 13 S.W. 1099; 21 Am. & Eng. Enc. Law (1st Ed.) 224, and cases cited."

The cases of Davis v. Dickerson, supra, and Gray v. Bank of Hartford, 137 Ark. 232, 208 S.W. 302, are to the same effect. A headnote to the case of Whitmore v. Scoggin, 147 Ark. 236, 227 S.W. 610, reads as follows: "The dismissal of a suit in equity to compel specific performance of a contract will not bar an action at law to recover damages for breach of such contract; the issues in the two actions being different."

At § 1227, p. 806, 34 C. J., Chapter on Judgments, it is said: "Where a plaintiff is defeated in an action based upon a certain theory of his legal rights or as to the legal effects of a given transaction or state of facts through failure to substantiate his view of the case, this will not as a rule preclude him from renewing the litigation, without any change in the facts, but basing his claim on a new and more correct theory. This rule applies where plaintiff bases his claim in the second suit upon a different right or title from that set up in the first action, provided the two titles are so inconsistent that they could not both have been brought forward in the same action; where he alleges a different ground of liability on the part of defendant, where he fails to establish defendant's liability under a written instrument, and afterward seeks recovery as on a resulting trust or on the ground of fraud or mistake; where having failed to establish a specific lien on property, he sues again on the ground of the personal liability of defendant; where, having sued for the price of...