Laurenzi v. James E. Pepper Distilling Co.

• Decision Date: 18 April 1922
• Parties: Eugene Laurenzi v. James E. Pepper Distilling Co.
• Court: West Virginia Supreme Court

90 W.Va. 794

Eugene Laurenzi

v.James E. Pepper Distilling Co.

Supreme Court of Appeals of West Virginia.

Submitted April 4, 1922.

Decided April 18, 1922.

Judgment Conclusive Between the Parties and Their Privies Upon Questions Involving the Merits, "Whether Pleaded or Not; Special Pleas of Former Adjudication Should be Filed. The judgment of a court of competent jurisdiction on the merits is conclusive upon the parties and their privies upon every question necessarily involved or brought within the legitimate purview of the subject matter of the action, whether actually pleaded or not, and may be pleaded in bar and estoppel when put in issue in another suit between the same parties or their privies, and special pleas pleading such former judgment in bar of a new action brought in the same or another court should be filed.

Certified from Circuit Court, Kanawha County.

Action by Eugene Laurenzi against the James E. Pepper Distilling Company. Questions involving rejection of two pleas and the admission of another are certified for review.

Rullings reversed in part; Motion to strike out pleas overruled.

E. B. Dyer and Morgan Owen, for plaintiff.

Brown, Jackson & Knight, for defendant,

Miller, Judge:

The questions certified involve the sufficiency of the defendant 's special pleas Nos. 1 and 1-A, rejected, and No. 1-B admitted by the circuit court. Several other special pleas along with the general plea of non assumpsit were also tendered and filed by defendant, but the questions presented thereby are not certified to us for decision.

The declaration contained the common counts in assumpsit, without a bill of particulars, and also a special count which set out and plead in detail the contract relied on as the basis of plaintiff's action. Each of the special pleas sought to interpose the defense of res adjudicata and estoppel. Plaintiff sued as assignee of the contract alleged to have been entered into on March 17, 1915, between defendant and the Sambucetti & Company, a corporation, the material parts whereof, set out in full in the said special count, are as follows:

"Sambucetti & Co. agree to purchase One Hundred (100) barrels, Spring 1911 Jas. E. Pepper, and One Hundred (100) barrels Spring '12 Jas. E. Pepper at 55 cts. less 2% for cash, plus carrying charges from date of entry in bond to date.

"In consideration of the above purchase, we (Jas. E. Pepper Dist. Co.) agree to the following conditions: "First: Sambucetti & Company is to have the benefit of any and all advertising' done in Memphis, either in Newspapers, bill-board or any other manner, should any be done in this territory.

'' Second: Sambucetti & Co. is to have the sole agency in Memphis for the period of two (2) years. * * *

'' Twelfth: Option is hereby given to Sambucetti & Co. to purchase an additional hundred (100) barrels Spring '11 or two hundred barrels or part Spring '12 and the option for the elevens may be exercised at any time between now and Nov. 1st, 1915, and the option for the twelves any time between now and Nov. 1st, 1916. These to be billed to them at 55 cts. less 2% plus carrying charges. We further agree to give them option on an equal number of barrels of 13, 14 and 15's, which option they may exercise on or before Nov. 1st, of each year.

"Should Sambucetti & Co. exercise their options, the sole agency is to be extended one year for each year's purchase, prices herein stipulated governed during continuance of agency.

"Fourteenth: Should Sambucetti & Co. not bottle all of their elevens and twelves within the specified time of two years they have the privilege of bottling under this contract and at the prices stipulated, any time thereafter.

Dated March 17, 1915."

After so setting out and pleading said contract of March 17, 1915, said special count proceeds to allege in substance that said Sambucetti & Company did not exercise its privileges or options given by paragraph 12 of said contract, whereby said contract expired and became of no effect; but that on November 4, 1915, the parties thereto entered into another contract in writing, signed by defendant and accepted by Sambucetti & Company, as follows:

"Nov. 4, 1915.

We have agreed to sell Sambucetti & Co. one hundred barrels late months 1911 and two hundred barrels spring 1912, James E. Pepper Whiskey at 47 1-2 cents per gallon in bond plus carrying charges to date.

All warehouse receipts to be certified by Lexington Bank & Trust Co. Terms: Cash.

For and in consideration of this purchase we hereby agree that the whiskey hereby sold is to be bottled under the terms agreed to in the previous and 1st purchase from us. We further agree that the options extended in our previous and last contract are renewed and the contract price reduced in all options to 47 1-2 cents plus carrying charges to date. We agree to exchange elevens for twelves if wanted.

James E. Pepper Distilling Co.,

By James Wolf, Pres.

Accepted:

Sambucetti & Co., Per E. Laurenzi."

After so averring said last described contract the special count further avers that under the terms thereof said Sambucetti & Co. purchased and paid for the 100 barrels late months 1911, and 200 barrels spring 1912; that on August 14, 1917, the said Sambucetti & Co. elected to purchase under said extended option from the defendant all the barrels of spring '13, '14 and '15 James E. Pepper whiskey, as provided for in the renewal of options in the second contract of November 5, 1915; but that the defendant not regarding its said promises, undertakings and agreements, refused to sell or deliver to said Sambucetti & Co. any of the whiskey of '13, '14 and '15, although often requested by said Sambucetti & Co. after its election aforesaid.

The declaration then avers the manner in which plaintiff derived his title by assignment to the original rights of Sambucetti & Company, which are not questioned, and that defendant since then on his demand has refused to sell and deliver to him the whiskey of the years 1913, 1914 and 1915, to the damage of the plaintiff $100,000.00, wherefore he sues, etc.

Each of the three special pleas under consideration pleaded and relied on the judgment of the District Court of the United States for the Northern District of Illinois, Eastern Division, in favor of the defendant, pronounced on March 25, 1919, in the suit of said Sambucetti & Company against the said James E. Pepper Distilling Company, upon the pleas of the defendant filed therein, and affirmed upon writ of error prosecuted by plaintiff therein, by the United States Circuit Court of Appeals for the Seventh Circuit, on March 30, 1920, the record of which cause in the said District Court and in the said Circuit Court being vouched or proffered with each plea, and wherein it is averred that said judgments in both of said courts remain in full force, not reversed, set aside or modified in whole or in part. Plea No. 1 identifies the plaintiff therein with the plaintiff's assignor in this case, and the defendant herein as the same as the defendant in said suit in the Federal courts, and avers that the contracts or cause or causes of action in the present suit are the same pleaded in said former suit, and as finally adjudicated against plaintiff therein, and that plaintiff herein is concluded and estopped thereby.

Special plea No. 1-A, in addition to the matters pleaded in plea No. 1, avers that the contract pleaded in the action in the Illinois court is the same as that sued on in this action; that the action in Illinois originated in the Municipal Court of Chicago, and was from there removed into the District Court of the United States for the Northern District of Illinois, where final judgment upon the merits of the cause was pronounced upon March 25, 1919, and which was affirmed upon writ of error by plaintiff therein, by the United States Circuit Court of Appeals, Seventh Circuit; that the cause of action therein is the identical cause of action and demand sued for in the present suit; that the contract of March 17, 1915, set out in full in the second count of the present declaration, is the same identical contract pleaded in said suit in Illinois, and predicated on the same identical demand of August 14, 1917, for the whiskey of 1913, 1914 and 1915, and the failure of defendant to furnish the same, which contract being vouched with the complaint in said former action, defendant made defense thereto, among other things, that the facts alleged in reference thereto created no liability upon defendant because of the expiration of the options given therein before the alleged acceptance thereof, and for other reasons, and all of which being considered by the court, it was therein and thereby and thereon adjudicated that no liability existed and because thereof that plaintiff's suit be dismissed. After vouching the record of said judgments in Illinois, this plea further avers that by said judgments said contract of March 17, 1915, constituted an agency contract, expiring March 17, 1917, because of the failure of the plaintiff to accept the option given thereby to purchase the 1912 whiskey on or before November 1, 1916, and that having failed to so elect and take said whiskey, no right accrued or could have accrued under the contract to take under said option the whiskey of the subsequent years 1913, 1914 and 1915; and all of which matters were by the judgments in Illinois fully determined upon the merits of the case and are res adjudicata between defendant and the said Sambucetti & Company and its privies; that by said option defendant assumed to furnish of the liquor of said years only such number of barrels as would equal the number of the 1912 whiskey which Sambucetti & Company should elect to take within the time specified, on or before November 1, 1916, and as it had elected to take none, it was not entitled to demand any of the 1913, 1914 or 1915 whiskey.

This plea also denies that the alleged contract of November 4, 1915, constituted a new contract...