Mackintosh v. Chambers

• Decision Date: 02 April 1934
• Citation: 285 Mass. 594,190 N.E. 38
• Parties: MACKINTOSH v. CHAMBERS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 594

190 N.E. 38

MACKINTOSH

v.CHAMBERS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 2, 1934.

Exceptions from Superior Court, Norfolk County; E. T. Broadhurst, Judge.

Action of contract by Herbert B. Mackintosh against Joseph A. Chambers and another. Decision in favor of the defendants, and the plaintiff brings exceptions.

Exceptions overruled.

H. B. Mackintosh, of Needham, in pro. per.

RUGG, Chief Justice.

This is an action of contract. The two counts in the plaintiff's declaration are alleged to be for the same cause of action. Allegations (common to both counts) are that the ‘plaintiff says that the said defendants owe him’ a specified sum of money with interest ‘for a balance due of money’ (in count 1) ‘received by the defendants to the plaintiff's use’ and (in count 2) ‘lent by the said plaintiff to the said defendants.’ The defendant Chambers pleaded general denial. The defendant Turner pleaded general denial and res judicata. It is stated in the exceptions that the plaintiff, an attorney at law, appeared pro se, that the defendants were not represented by counsel, and that only the defendant Turner appeared at the trial and testified. Turner (called as a witness by the plaintiff) testified that his aid was asked by the defendant Chambers in procuring a loan, that on November 23, 1921, the plaintiff handed $305 in cash to Chambers and that the two defendants signed and delivered to the plaintiff a promissory note for that amount on that date. The plaintiff on demand produced the note, which was received in evidence subject to his exception on the stated ground that it ‘was a different cause of action.’ It appeared that immediately after the payment of $305 to Chambers and the signing and delivery of the note by both defendants to the plaintiff, the latter demanded and received from Chambers $155 in cash, which was then and there credited as a payment on the note, and that subsequently $5 was paid on the principal and $1.88 on the interest. The plaintiff testified that he took the note of the defendants as evidence of the loan and that the present action is to recover the balance of the $305 lent. The plaintiff admitted and it appeared of record that by writ dated July 1, 1922, he brought an action against the defendants to recover (as alleged in the declaration in that action) the amount of the note and interest. Copy of the note was annexed to that declaration. An examination of the record in this court when that case was before us in Mackintosh, Petitioner, 268 Mass. 138, 167 N. E. 273, shows that at that trial there was no evidence or testimony except that which came through the plaintiff and witnesses put on the stand by him; that the defendants did not testify and produced no witnesses; that it was the contention of the defendants at that trial that the note upon which the action was brought came within the Small Loans Act so-called, G. L. c. 140, § 96 et seq.; that it was a loan for $150 and not for $305; that the plaintiff was engaged in the business of making small loans and that evidence in relation thereto brought out on cross-examination was admitted. That action was tried to a jury, verdict was returned for the defendants, and judgment was entered in their favor on August 15, 1929. Manifestly, that action was tried on its merits. In the case at bar the trial judge found for both defendants on the ground that the causes of action in the earlier action at law between the same parties and in the present action were the same and that the matter was res judicata as to both defendants. The plaintiff excepted to the ruling that the adjudication in the action on the note was a bar to the present action and to the ruling that that defence was open to Chambers, who had not pleaded res judicata.

The ruling was right that judgment in the earlier action was rendered on the same cause of action as that declared upon in the present action. The only transaction between the parties was a loan of money by the plaintiff to the defendants. The note and the cause of action set out in the present declaration both were founded upon and grew out of that single transaction.

The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, or agreement, and seeks redress for the same wrong. Smith v. Palmer, 6 Cush. 513, 519;Newhall v. Enterprise Mining Co., 205 Mass. 585, 91 N. E. 905,137 Am. St. Rep. 461;Diebold Safe & Lock Co. v. Morse, 234 Mass. 17, 124 N. E. 429;Burke v. Willard, 249 Mass. 313, 144 N. E. 223. The effect of a former judgment, if admissible, depends not upon the form of the pleadings but upon the essence of the violation of legal right on which pleadings are founded. Two actions are not necessarily for different causes of action simply because the theory of the second would not have been open under the pleadings in the first. A party cannot preserve the right to bring a second action after the loss of the first, merely by having circumscribed and limited the theories of recovery opened by the pleadings in the first. Canning v. Shippee, 246 Mass. 338, 141 N. E. 79. For example, a judgment for the defendant in an action for negligence causing personal injury bars a subsequent action for the same injury on the ground of wanton, wilful and reckless conduct. Cotter v. Boston & Northern Street Railway, 190 Mass. 302, 76 N. E. 910. Where the object and ‘petitory conclusions' of two suits in equity are the same, the dismissal on the merits of one bars the other, although they are brought on different theories. Hoseason v. Keegen, 178 Mass. 247, 59 N. E. 627;Barnes v. Huntley, 188 Mass. 274, 74 N. E. 318,108 Am. St. Rep. 471. A judgment for the defendant in a statuory suit for loss of goods by fire from a locomotive bars a suit for the same loss based on negligence. Bassett v. Connecticut River Railroad, 150 Mass. 178, 22 N. E. 890;Vinson v. Graham (C. C. A.) 44 F.(2d) 772.

The alleged debt due to the plaintiff from the defendants constituted one right, whether disclosed by a note or by money lent. The violation of that right was the failure of the defendants to pay that obligation. That was the single legal wrong of which the plaintiff complained. The forms of pleading cannot obscure this underlying single right violated by a single wrong.

The point is concluded by authority in this commonwealth. It was held in Moore v. Moore, 9 Metc. 417, through Chief Justice Shaw, that in an action upon money counts a promissory note may be given in evidence to support the action because ‘the offer of the notes is not the introduction of a new cause of action.’ Wild v. Fisher, 4 Pick. 421; Story v. Atkins, 2 Strange, 719, 725. See, also, Townsend v. Derby, 3 Metc. 363. It is also covered in principle by numerousdecisions. Clare v. New York & New England Railroad, 172 Mass. 211, 51 N. E. 1083;Cotter v. Boston & Northern Street Railway, 190 Mass. 302, 76 N. E. 910;Spector v. Traster, 270 Mass. 545, 548, 170 N. E. 567;Chelsea Moving &...