Lloyd v. Barr.

• Decision Date: 28 May 1849
• Parties: GILBERT L. LLOYD <I>v.</I> JOHN BARR.
• Court: Pennsylvania Supreme Court

11 Pa. 41

GILBERT L. LLOYD v. JOHN BARR.

Supreme Court of Pennsylvania.

May 28, 1849.

May 28.

ERROR to the Common Pleas of Blair.

COPYRIGHT MATERIAL OMITTED

Plaintiff in Error's Assignment of Errors.—1. The court erred by giving judgment on the demurrer in favour of the plaintiff below.

2. By their answer to the several points of the defendant below, and in refusing to answer them as requested.

Miles and Calvin, for plaintiff in error.—This is the case of a suit instituted by a third endorser against a first endorser of a promissory note, after a recovery, (without a trial on the merits and without a plea having been put in to the declaration) by the holder against all the endorsers in a joint action in which the declaration contained the ordinary averment of notice. In this suit, the defendant pleaded, amongst other things, a want of notice

of the dishonour of the note, to which the plaintiff specially replied the record of the former recovery by way of estoppel, to which replication the defendant demurred. The court gave judgment for the plaintiff below on the demurrer, thereby refusing to allow the defendant to plead that he had received no notice of demand upon Dearmit, the drawer of the promissory note set out in the plaintiff's declaration, and of non-payment by him, upon the ground that the judgment at the suit of the bank, endorsee of Gilbert L. Lloyd, Kemp & Cunningham, and John Barr, against Gilbert L. Lloyd, Kemp & Cunningham, and John Barr, operated as a legal estoppel against his plea of a want of notice. The judgment in that case was not directly upon the point in issue in the cause now before the Court. That judgment was predicated upon the asserted joint responsibility of the defendants, to the bank, and without proof of a joint responsibility there could have been no legal recovery. That was the point directly in issue. In this case the issue made by the plaintiff is, whether the defendants were not separately liable to the bank in the order of their endorsements, and without any joint responsibility, being the very opposite of the issue tried in the former case. The record on which the plaintiff relies as an estoppel against pleading the truth, is inconsistent with itself and contradictory. In the statement of the cause of action the endorsements are laid to have been made consecutively, so as to make each endorsement a several contract; but a joint notice is laid, and a joint promise averred to have been made by all the endorsers in consideration of a joint liability. The precise point in this case is, whether Gilbert L. Lloyd, as the alleged first endorser, be not severally and separately liable to the plaintiff as the last endorser who has paid or satisfied the last endorsee (the bank). The question in this cause was not raised nor adjudicated in the suit of the bank. To give a judgment the effect of an estoppel, the following things must concur: —

1st. It must be directly upon the point in issue in the second cause, upon the same matter directly or incidentally in question: Hibshman v. Dulleban, 4 Watts, 191; 1 Greenleaf's Ev. 562, § 522; Outram v. Morewood, 3 East, 346; 2 Harrison's Digest, 2799; 1 Greenleaf's Ev. 565, § 528.

To constitute an estoppel by a former judgment, the precise point which is to create the estoppel must have been put in issue and decided: 5 American Com. Law, 90; 7 Con. Rep. 377; 4 Con. Rep. 278; 4 Day's Rep. 274; 2 John's Rep. 24; Sterner v. Garver, 3 W. & S. 136.

There had been no technical issue formed. There was no plea upon the record.

2d. It must be between the same parties or their privies — it must be INTER partes — 2 Smith's Leading Cases, 433; Shulze's Appeal, 1 Barr, 253; Marsh v. Pier, 4 Rawle, 288, 4 Watts, 191. Parties in a legal sense mean those who are contestors on one side, whether one or more, as a unit, in their relations to the contestors on the other side, whether one or more. There was no issue or question adjudicated between the defendants, in the record relied upon. The issue was between the plaintiff (the bank) and the joint defendants, as a unit — or one party defendant. An averment of notice to joint contractors or promissors would be sustained by evidence of notice to either of them. Proof of notice given to Barr alone, would sustain the averment in the declaration, in the suit of the bank.

3d. The judgment is not evidence of any matter to be inferred by argument from it: 4 Watts, 191.

If notice to one of the defendants would be notice to all, according to the nature of the contract laid, then it is only an argumentative inference that Lloyd had notice — and the legal deduction may be contrary to the fact: 3 Kent, 108; 6 W. & S. 401; Jones v. Wardell, 6 W. & S. 399; 14 Mass. 116; Triplett v. Hewit, 3 Dana, 128; 1 U. S. Digest, 425, § 152.

4th. Where the allegation in the record is uncertain it will not work an estoppel, for an estoppel not being favoured by the law, ought to be certain to every intent: Coke Litt. 352 (b) 303 (a). And therefore, "if a thing be not directly and precisely alleged it shall be no estoppel:" Co. Litt. 352(b); 2 Smith's Leading Cases, 432, 433. Notice to Lloyd is only to be inferred by argument or legal deduction, and therefore not alleged with sufficient directness and precision.

5th. As a joint promise was averred, notice to each defendant was not traversable nor material, therefore the record of the judgment cannot be conclusive evidence of actual notice having been given to Lloyd: 2 Smith's Leading Cases, 433.

6th. Here is estoppel against estoppel, for if Lloyd is estopped from denying notice, Barr is estopped from denying that the promise to the bank was joint, and if the record operates in that way upon him, he ought not to have been permitted to recover upon the basis of a several liability by reason of Lloyd's endorsement being the first in the order of time, and "estoppel against estoppel setteth the matter at large:" 2 Smith's Leading Cases, 433 7th. A party is not to be concluded by a judgment in a prior suit or prosecution, where, from the nature or course of the proceedings, he could not avail himself of the same means of defence, or of redress, which are open to him in the second suit: Greenleaf's Ev. § 524; 1 Starkie's Ev. 214, 215.

In the joint action of the bank against Lloyd, Kemp & Cunningham, and Barr, Lloyd could not avail himself of a want of notice given to him, by his subsequent endorsers, because actual notice to them or either of them would be constructive notice to him; and, as he could not make that defence in that action, he is not concluded in this action, in which the effort is to charge him upon his supposed several liability.

8th. Estoppels must be mutual: Greenleaf's Ev. § 524; Shultz's Appeal, 1 Barr, 253; Carmony v. Hoover, 5 Barr, 307. As between themselves, the defendants were not litigating parties. They only repelled the attack of the common foe, and no opportunity supervened of taking testimony, or cross-examining witnesses, to determine the relation between themselves. The record of the judgment would be evidence for Barr, of the rendition of the judgment as a fact, but could not be used by either Barr or Lloyd as the medium of proof of the matters of fact recited in it: Greenleaf's Ev. § 538. There is a known distinction between the admissibility of a judgment as a fact, and as evidence of ulterior facts: Greenleaf's Ev. § 539.

If the judgment is permitted to work an estoppel upon the notice to Lloyd, it must operate in the same way upon the relations between Barr and Lloyd, and estop Barr from alleging that he did not sustain the relation to Lloyd of a joint debtor. The recovery was upon the averment of a joint indebtedness, and Barr cannot repudiate that part of the record, and rely upon another part of it, in which the endorsements are laid in the order in which the plaintiff alleges they were made. If it be an estoppel upon any of the defendants, it must be according to the contract laid. It was based upon a joint promise or contract averred; and, if Barr can use it as conclusive upon the point of notice, Lloyd can use it as conclusive to show that the contract was joint, and not several, as the plaintiff now asserts it to be. If the contract was joint, then Lloyd was only responsible for his contributive share of the money paid to the bank, after deducting what Dearmit himself paid.

Bell, for the defendant in error.—1. Prior endorser is liable to pay to a subsequent endorser the whole amount paid by the latter on the note, with interest: Young v. Ball, 9 Watts, 139; Miller v. French, Ib. 96; Stewart v. Sands, 6 Barr, 507.

2. If Barr had been entitled to subrogation after paying the judgment obtained by the bank against all the endorsers, he would be entitled to recover in this action. The pleadings here raise the same question that would have arisen upon the motion to subrogate, this being an action in case founded on that judgment and brought to enforce payment by Lloyd, of what from the face of that record he was liable to pay to Barr: Rittenhouse v. Levering, 6 W. & S. 190; Fleming v. Beaver, 2 R. 131; Hawk v. Geddes, 16 S. & R. 28; Burns v. Bank, 1 P. R. 395; Crofts v. Moore, 9 Watts, 451.

3. Lloyd is estopped from denying any of the material averments in the record of the suit by the bank, which were necessary to enable the plaintiff to recover — as that he had received notice of protest, &c. Whether that suit was rightly brought cannot be inquired into in this action. The misjoinder of the defendants under the expired act of 29th March, 1819 (7 Smith, L. 217), could only be taken advantage of in the trial of that action. The notice averred in that action was several — to each defendant. The formal joint promise is not important; the proper construction of it is what the law would raise on the facts set forth in the narr., that the promise was several: 9 Cranch, 44; 1 M'Lean's R. 460; 4 Scam. 364; 11 Ohio, 257; 2 U. S. Dig....