House v. Donnelly

• Decision Date: 21 January 1913
• Citation: 7 Ala.App. 267,61 So. 18
• Parties: HOUSE et al. v. DONNELLY.
• Court: Alabama Court of Appeals

61 So. 18

7 Ala.App. 267

HOUSE et al. v. DONNELLY.

Court of Appeals of Alabama

January 21, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by J.W. Donnelly against E.W. House and others. Judgment for plaintiff, and defendants appeal. Affirmed.

See also, 160 Ala. 325, 49 So. 324.

Vasser L. Allen, of Birmingham, for appellants.

Cabaniss & Bowie, of Birmingham, for appellee.

WALKER, P.J.

This was an action to recover an amount claimed to be due as rent for the month of September, 1906, under a written contract entered into by the defendants (the appellants here). The defendants pleaded as a set-off a claim to damages alleged to have been sustained by them as the result of the plaintiff's breach of an alleged parol agreement on his part to have the rented premises repaired. To this plea the plaintiff interposed a special replication, which set up as an adjudication against the claim put forward in the plea of a judgment in favor of the plaintiff rendered in a previous suit, brought by him against the same defendants, for the installment of rent due for the month of August, 1906, under the same rental contract, in which suit, as in effect was averred in the replication, the same claim as that pleaded as a set-off in this suit was set up by the defendants, was tried on its merits and adjudged against them. As it was for the full amount claimed in the complaint therein, the judgment in the former suit finally disposed of adversely to the defendants therein all matters of defense there set up including the claim which was there pleaded as a set-off. The contention of the appellants is that the claim set up by the special plea in this case is not the same claim as the one which was pleaded by them in the former suit, and that for this reason the judgment rendered in that suit is not a bar to the claim upon which they rely to defeat the present action.

The evidence in the case plainly developed the fact that whatever claim the defendants had against the plaintiff because of an alleged breach by the latter of an agreement on his part to repair the rented premises was based upon what occurred in a single interview with him. There is no pretense that there was any contract on that subject other than the verbal one claimed to have been made on that occasion. It is made plain that the defendants in the former suit sought to enforce by way of a set-off what that alleged contract was then claimed to be. Their plea setting up such contract was held to be good as against the demurrer interposed to it. Donnelly v. House, 160 Ala. 325, 49 So. 324. The adjudication was against the claim as it was made in that case. We understand the contention of the counsel for the appellants to amount to this: That, though the claim set up by the special plea in this case is based upon the same transaction upon which the claim which was pleaded as a set-off in the former suit was based, yet the judgment rendered in that suit does not affect the claim of set-off asserted by the special plea in this case, because the description of the contract which is found in that plea varies somewhat from that given in the special plea in the former case, and because in this case there is a claim of the existence of a consideration to support the contract, which was not made or passed upon in the former suit. If such a contention can be sustained it is manifest that the doctrine of res adjudicata is of very limited application to claims based upon alleged verbal agreements. Under the rule as the appellants would have it applied all that would be necessary to avoid the effect of a former adjudication against such a claim as it was then asserted would be to vary the description of it given in the pleading in a subsequent suit and to aver and prove in such subsequent suit the existence of a consideration to support the claim which was not relied upon in the former suit. We think that the contention is based upon a misconception of the scope of the former adjudication.

If, as a result of the transaction upon which the defendants rely an obligation to make repairs on the rented premises was incurred by the plaintiff, this contract of his, whether it was described in the special plea in the former suit or is described in the plea...