Hill v. Dillon

• Decision Date: 11 March 1916
• Docket Number: No. 1404.,1404.
• Citation: 183 S.W. 1088
• Parties: HILL v. DILLON et al.
• Court: Missouri Court of Appeals

183 S.W. 1088

HILL v. DILLON et al.

No. 1404.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by Edward C. Hill against T. J. Dillon and another. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 176 Mo. App. 192, 161 S. W. 881.

J. B. McGuffin, of Aurora, George Pepperdine, of Springfield, and H. H. Bloss, of Aurora, for appellants. Edgar P. Mann, of Springfield, and William B. Skinner, of Mt. Vernon, for respondent.

STURGIS, J.

This is a suit on a note, the execution of which is admitted. The plaintiff sues as assignee and legal holder. The defense is that the note was obtained by fraud, is without consideration, and that plaintiff's ownership of same is merely colorable as the means of protecting and aiding the wrongdoers. This is the third appeal in the case to this court, the decisions in the former appeals being reported in 151 Mo. App. 86, 131 S. W. 728; and 176 Mo. App. 192, 161 S. W. 881. The petition and answer, except an unimportant amendment to the latter, are the same as in the former appeals. At the last trial, however, the plaintiff by reply raised an entirely new issue, that of res judicata as to defendant's defenses. The trial court, after the evidence was in, sustained this plea and directed a verdict for plaintiff, and the case is now here on defendant's appeal. The plea of res judicata raised the only issue in the case.

The plaintiff's position, sustained by the trial court, is that the only vital question in the case is whether the note was obtained by fraud; that the other defenses are subordinate to this and fall with it; that this issue has been conclusively adjudicated in plaintiff's favor in a suit between the same parties tried in the circuit court of Lawrence county, Mo., and affirmed on appeal to the Supreme Court in Dillon v. Hill (Sup.) 178 S. W. 85, not yet officially reported. That case will be referred to as the Lawrence County Case. The nature of the issues as well as the substance of the pleadings and facts, other than on the issue of res judicata, will be found in the opinions above referred to, and need not be repeated here. It will be found that the all-important issue on both the former trials and appeals to this court was that of fraud and misrepresentation as to the mining stock sold by one Loy to the defendants Dillon and Bushman, and for which this note was executed as part of the purchase price. On the first appeal from a directed verdict for plaintiff, the case was reversed and remanded by this court on the ground that there was evidence warranting a submission of that issue to the jury. On the second appeal the case was reversed and remanded because of errors growing out of the submission of collateral questions relating to the fraud, to wit: The burden of proof as to plaintiff being an innocent purchaser of the note and failure of consideration disconnected with the fraud. A reading of the case of Dillon v. Hill, supra, which is relied on as being res judicata of this issue, will show that the question of fraud or misrepresentation in the value of this mining stock was the sole issue there involved. That case was for damages on account of such fraud and misrepresentation.

I. The plaintiff pleaded and put in evidence here in support of his plea of res judicata the record of the Lawrence County Case, inclusive of the pleadings, evidence, verdict, and judgment in his favor. A comparison of the record in the present case with that of the Lawrence County Case shows that no new witnesses were introduced by these defendants on this trial, and the evidence differs in no material respect. The defendants specifically admit "that the same acts are alleged as a basis of avoiding this note that were alleged as a basis of the cause of action for damages."

Defendants assert that in order that the proceedings in the Lawrence County Case be a bar to the defense in this case, not only must the parties be the same and sue in the same capacity, but that there must be identity of the thing sued for and identity of the cause of action. Perkins v. Goddin, 111 Mo. App. 429, 444, 85 S. W. 936; State, to use, v. Hollinshead, 83 Mo. App. 678, 682; Lincoln Trust Co. v. Nathan, 122 Mo. App. 319, 327, 99 S. W. 484; Barkhoefer v. Barkhoefer, 93 Mo. App. 373, 380, 67 S. W. 674. That there is identity of cause of action seems obvious.

II. The cause of action is the basic facts which warrant the court in granting relief, or, as we generally say, "the facts constituting the cause of action." Ingwerson v. Railroad, 150 Mo. App. 374, 381, 130 S. W. 411; Litton v. Railroad, 111 Mo. App. 140, 149, 85 S. W. 978; Thornton v. Smelting Co., 178 Mo. App. 38, 47, 163 S. W. 293. The cause of action in the one case and the defense in the other is fraud and deceit practiced in selling mining stock, or rather the facts which the law pronounces fraud and deceit with reference to that transaction. These are admittedly the same...