Jacobson v. Miller
| Decision Date | 11 June 1879 |
| Citation | 41 Mich. 90,1 N.W. 1013 |
| Court | Michigan Supreme Court |
| Parties | AUGUST JACOBSON, IMPLEADED WITH SAMUEL GUNZBURG, v. SAMUEL MILLER. |
In an action upon a lease for rent the defendant pleaded the general issue, without denying under oath the execution of the lease. Under circuit court rule 79, he was thereby precluded from disputing such execution in such suit and judgment was ordered for plaintiff. Held, that such judgment was not conclusive as to the actual execution of such lease but that in a subsequent suit upon the same instrument, for other rents accruing under it, its actual execution by defendant might be litigated.
Sometime in the year 1877, but the precise time does not appear from this record, Miller brought suit against Gunzburg & Jacobson in the circuit court for the county of Kent, to recover the amount of certain rents alleged to have accrued between October 15, 1875, and April 9, 1877, on a lease from himself to defendants, by which he demised to them certain premises in Grand Rapids, for the term of three years from the day first above named, at the annual rent of fourteen hundred dollars, payable monthly in advance. The general issue was pleaded to the declaration, but there was no denial under oath of the execution of the lease. The failure thus to deny it precluded the defendant, under circuit court rule 79 from disputing the execution on the trial, and the defendants could make such defense only as assumed that they had made the lease. On this point we refer to Fisher v. Hale, 4 Mich. 506, where a statute similar to the rule in legal effect was passed upon.
Jacobson seems to have contested the case on the trial, and he put in evidence to show that Gunzburg alone occupied the demised premises, and not the two defendants. There is, perhaps, some disagreement between the parties regarding what he claimed from this evidence, and we pass it by with no further remarks at this time. The trial resulted in a judgment for the plaintiff.
Miller afterwards brought another suit on the same lease, in which he sought to recover for rents claimed to have accrued between July, 1877, and April, 1878. This is the suit which is now before us on writ of error. Jacobson alone appeared and pleaded, and he accompanied his plea with an affidavit, in which he denied that he ever signed, executed or delivered the lease sued upon, or ever authorized any other person to do so for him. This affidavit, under the rules, made it necessary that the plaintiff should prove the execution of the lease.
By way of making this proof the plaintiff offered in evidence the files, the verdict and judgment in the former case. Defendant objected to them, but they were received; the judge being of opinion, as he subsequently instructed the jury, that "notwithstanding the lease was received in evidence in the former case without any evidence for or against it, by reason of its execution not having been denied under oath yet that the judgment is certainly just as much a bar and a conclusive disposition of the question of the execution of the lease as if the witnesses had then and there been sworn on both sides as to its execution, because the execution of the lease, if the recovery was had upon it, was a matter necessary to be disposed of in order to reach the conclusion."
The defendant, Jacobson, then offered to show a new arrangement. by himself, as agent for Gunzburg, with Miller, made in December, 1875, by which the latter accepted Gunzburg as his tenant; but the court overruled the offer as being inconsistent with the judgment in the former case, which must have assumed the existence of the lease as a valid one up to the time when the rents accrued for which the judgment was given. An attempt was then made to show a surrender of the lease subsequent to the bringing of the former suit, but this failed, under the rulings of the judge, and the plaintiff again had judgment.
I. The principal question presented by this record is whether the circuit judge was right in holding that, by the former suit, the execution of the lease was conclusively established for the purposes of any subsequent suit for the recovery of rent claimed to have accrued under it. If he was, that is an end of the main controversy, for legal controversies are not to be suffered to be tried over and over to the annoyance of parties, the disturbance of the community, the unnecessary absorption of the time of the court, and at an expense not less to the litigants than to the public.
The general principles which must govern the case are familiar. There are two matters in respect to which an adjudication once made may be conclusive: First, the subject-matter involved in the litigation; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject-matter in litigation.
The subject-matter involved in a litigation is the right which one party claims as against the other, and demands the judgment of the court upon; as, for example, the right in ejectment to have possession of the lands in assumpsit to recover a demand; in equity to have a mortgage foreclosed for an amount claimed to be due upon it, or to have specific performance of a contract, and so on. As respects this, if an adjudication is once had, and any question respecting it arises afterwards in a collateral suit, the adjudication will be held conclusive. It will also be conclusive in any new suit in which either party, by his pleadings, endeavors to put in issue and entry the subject-matter of the former adjudication, or any portion thereof. Illustrations of the application of the principle are to be seen in Barker v. Cleveland, 19 Mich. 230, and Hazen v. Reed, 30 Mich. 331. The latter was a hard case, and ought to have been made an exception, if exceptions were admissible. A mortgagee had foreclosed his mortgage and taken decree, without allowing a payment which had been made upon it. The mortgagor afterwards brought suit to recover back the amount of this payment, but as the suit in equity necessarily covered the question of what payments had been made upon the mortgage, the subsequent suit in assumpsit was only an attempt to retry the right of the complainant in the foreclosure suit to some portion of the sum for which the equity court had awarded a decree.
Nor, as regards the subject-matter of the suit, is it of the least importance, when the question comes up again collaterally, whether the suit was contested, or was suffered to go by default; whether, if it was contested, all the questions were raised by the pleadings, or upon the trial, that might have been raised; or whether the court was right or wrong in its conclusions upon the fact or upon the law. It is sufficient that the case proceeded to judgment according to the forms of law, and that the court rendered judgment that, by its terms or legal effect, covered the controversy. In Hazen v. Reed there was no direct adjudication that defendant had, or had not, made the payment he afterwards brought forward, for the reason that he assumed the complainant would allow it, and therefore made no defense. But as the sum paid was a part of the subject-matter in controversy, and was necessarily involved in the question of the amount owing on the mortgage, he could not, by his neglect to make defense in the first suit, entitle himself to separate from the first controversy something that was necessarily involved in it, and make it the subject of a new litigation.
The subject-matter of the first suit between these parties was the right to recover certain rents alleged to have accrued upon the lease prior to April, 1877. Of course, there could have been no rents if there was no lease, and, therefore, it is said that the right to rents in the first suit necessarily involved the existence of the lease, and its execution by the parties sued. Assuming this to be correct, it may still be necessary to distinguish between the subject-matter of the former suit, namely, the rents claimed, and the point involved in the right to them, namely, the execution and delivery of the lease. The plaintiff insists that the prior adjudication is conclusive as respects both; the defendant, Jacobson, insists that it is conclusive only as respects the sums for which judgment was recovered.
It is not denied by the defendant that if the execution and delivery of the lease had been disputed in the first suit the determination of the issue would have been conclusive upon the parties in any subsequent litigation involving the right to rents under the same lease. The case would then have been within the principle of ...
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