Henry v. Woods

• Decision Date: 30 April 1883
• Citation: 77 Mo. 277
• Parties: HENRY, Appellant, v. WOODS.
• Court: Missouri Supreme Court

77 Mo. 277

HENRY, Appellant,

v.WOODS.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Smith & Shirk for appellant.

J. P. Orr and John J. Cockrell for respondent.

PHILIPS, C.

This is an action of assumpsit instituted by appellant to recover various sums of money alleged to have been loaned and advanced by him to defendant in 1873 and 1874.

The answer, after interposing a general denial, pleaded that in 1871 defendant loaned plaintiff $1,500, and plaintiff had defendant to take as and for the same one note of plaintiff's brother, L. H. Henry, for $1,000, secured by deed of trust on real estate, in which W. C. Marlett was trustee, and one note of $500 secured by chattel mortgage, but it was plaintiff's debt and he promised to pay it; that plaintiff made several payments on said debt and had paid all of said $500 note, and part of the other, and in February, 1874, plaintiff and defendant had a settlement and there was then due $962 on said $1,000 note; that the money claimed in the petition is in fact the money so paid by plaintiff on said debt; that plaintiff, failing to pay said balance, said L. H. Henry, on May 27th, 1875, brought suit in equity in Johnson county circuit court against plaintiff and his wife, to compel plaintiff specifically to perform his said contract and pay said note, and on trial of said cause at November term, 1877, got judgment, adjudging that plaintiff should pay said debt; that in the trial of that cause the several claims set out in the petition in this case were litigated and allowed as payments on said notes, and there was still found to be due $1,250, which plaintiff was ordered to pay by the term when this answer was filed, June, 1877; and said judgment is still in full force.

The reply denies all new matter in the answer; also says the alleged suit of L. H. Henry against plaintiff and wife was not between parties or privies to this suit, and that the matters here in suit, were not and could not be determined in that suit, and the judgment in that action does not conclude plaintiff in this case and is no evidence of any fact herein; and prays judgment as in his petition.

On the trial by the court without a jury, plaintiff's evidence tended to show that he loaned defendant the money sued for and he refused to pay it. Defendant's evidence tended to show that plaintiff obtained a loan of $1,500 of defendant, and got his brother to give the notes of $1,000 and $500 for it, and the money sued for was paid by plaintiff on that debt. Defendant put in evidence, against plaintiff's objections, the said two notes and mortgages securing the same. In support of the plea of former recovery he introduced the pleadings and record in the suit of L. H. Henry against John A. Henry and wife; petition filed in 1875. On the issues made up in that case the court found for L. H. Henry. To the admission of this record in evidence, appellant objected and excepted.

The petition in the case between the two Henrys stated that L. H. executed his note and mortgage to D. Woods for $1,000, and had dealings with J. Henry, and that in April, 1874, they had a settlement, finding that L. H. owed J. H. $1,500; they then owned in common certain lands in which L. H. sold his interest to J. H. and conveyed same to J. H. and wife; in consideration of which J. H. cancelled the $1,500 and agreed to pay the $1,000 note to Woods; which last named note he failed and refused to pay. The prayer of this petition was for specific performance and to have a lien for said $1,000 declared on the half interest in said land so conveyed to J. Henry's wife.

The answer, in terms, was a general denial to this petition. It then alleged that from 1863 to April, 1874, L. H. was largely indebted to J. H. for money loaned and paid at his request, and set out the items “none of which (so the abstract of the record states) had any reference to the matters involved in this suit.” There was, however, this item: “April 15th, 1871, by cash paid from D. Woods $1,500.” The balance claimed by J. H in his said account was $6,182. The answer in said action of L. H. against J. H. and wife, alleged that L. H was insolvent, and his wife paid $2,000 of said debt; that L. H. then proposed that if J. H.'s wife would pay back said $2,000 and J. H. would cancel his claim against him, he would convey to J. H.'s wife his interest in said land so held by them in common, which offer it was alleged they accepted, and paid back said $2,000, and cancelled said debt, and received the deed conveying said interest to Mary A. Henry. The reply was a general denial in effect.

The judgment in that case finds that J. H. obtained $1,500 of Woods, and got plaintiff, L. H., to give his note and deed of trust for $1,000 of it, J. H. agreeing to pay it; that plaintiff traded the land covered by deed of trust to one Levi Hyer for other land, taken in the joint name of plaintiff and defendant, and defendant agreed to pay the note and discharge the deed of trust; that subsequently, on 1st of March, 1874, plaintiff and defendant had a full settlement, and plaintiff sold defendant, and conveyed to defendant's wife, his one-half of the land, and defendant again agreed to pay that note and deed of trust. “And the court doth further find, that defendant, J. H., had from time to time paid and discharged of the principal and interest and reduced said note, and that there remained due and unpaid thereof at the date of that settlement, $962, which amount, with interest thereon, is yet due and unpaid, amounting to $1,250.” The judgment is for $1,250 to be levied of the goods, etc., of J. H., and if not enough, then of the land conveyed to Mary W., wife of J. H.

Appellant and respondent introduced parol evidence, the one tending to prove, the other to disprove, the identity of the $1,500 and other items in the two cases.

The court gave an instruction declaring that if the matters involved in the case of L. H. Henry against J. A. Henry and wife were the same as those involved in the present action, the plaintiff could not recover, and, refusing to consider any other question, found in its judgment that the matters in this action were res judicata and dismissed plaintiff's action. The controlling question, therefore, presented by the record is: Did the adjudication between L. H. Henry and J. A. Henry and wife preclude the latter from maintaining this action against Woods, who was a stranger to that adjudication?

The fundamental rule on this subject is, that a matter once adjudicated, by a court of competent jurisdiction, may be invoked as an estoppel in any collateral suit, in any court of law or equity, or in admiralty, when the same parties or their privies, or one of the parties and the privy or privies of the other allege anything...