Maddocks v. Gushee

• Decision Date: 26 April 1921
• Citation: 113 A. 300
• Parties: MADDOCKS v. GUSHEE.
• Court: Maine Supreme Court

113 A. 300

MADDOCKS

v. GUSHEE.

Supreme Judicial Court of Maine.

April 26, 1921.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Action by Eden C. Maddocks against T. E. Gushee. Verdict for the plaintiff, and defendant excepts. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

A. S. Littlefield, of Rockland, for plaintiff.

R. I. Thompson and M. A. Johnson, both of Rockland, for defendant.

DUNN, J. The defendant in this action sold and delivered a horse to a man named Hopkins, taking a Holmes note in payment. Defendant afterward made sale and delivery of the same horse to the plaintiff in this action. Thereupon the original purchaser replevied the horse from the second vendee. Eventually, on default of the defendant in the replevin suit, the court adjudicated, to quote from its record, that the property which has been recovered "belonged to" the plaintiff in the case. Then the present action was begun. When this action came on for trial, evidence was offered tending to show that in the replevin case he who had twice sold one horse was notified by the first vendee to come into court and make good a warranty of title, express or implied, against asserted subsisting previous ownership. He disregarded the notice. In the instant case, however, he asked the justice presiding to instruct the jury that, as the judgment in replevin was by default, title to the horse was not thereby determined as between himself and him who is plaintiff now and was defendant before. The justice declined to so rule. Nor would the judge permit this defendant to show that, in advance of the later sale, he had received the horse back in amicable adjustment of the unpaid note. The justice was clearly right.

Parties and privies are estopped by a judgment. Corey v. Russell, 106 Me. 485, 76 Atl. 930; Stacy v. Thrasher, 6 How. 45, 12 L. Ed. 337. "It is well settled doctrine in this state," said Chief Justice Peters, "that if any issue be judicially established between parties to a litigation, the benefit of the finding will inure in favor of the winning party whenever such issue again arises between the same persons or their privies in any other suit. This is upon the principle of estoppel which declares that an issue or fact once judicially proved is forever proved." Parks v. Libby. 90 Me. 56, 37 Atl. 357. The term "privity" denotes mutual or successive relationship to the same rights of property. Greenleaf on Evidence, § 523. As a general rule a judgment by a court of competent jurisdiction directly upon the point is, as a plea, a bar, or as evidence, conclusive and binding between the same parties and their privies upon all properly alleged matters embraced within the issue in action, and which were or might have been litigated therein. Corey v. Russell, supra. It is immaterial whether issue actually was joined by the defendant or tendered him and left unanswered. The rule applies as well to a judgment by default, when the facts stated warrant the relief sought, as to one rendered after contest. Gates v. Preston, 41 N. Y. 113; Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649. A judgment by default or upon confession is, in its nature, just as conclusive upou the rights of the parties before the court as a judgment upon a demurrer or verdict. Gifford v. Thorn, 9 N. J. Eq. 702.

Whether the present defendant was seasonably and reasonably vouched in the replevin suit was a question of fact, in regard to the finding, and the effect, as a matter of law of the finding, of which the jury was guided by instructions to which exceptions were not taken. If the defendant were duly called in, as he seems to have been, to defend on a warrant of title, then of right he could have summoned witnesses to testify in his favor he could have cross-examined witnesses introduced by the opposite side; indeed, the defense would have been his to control. Actual notice in apt time to the party liable over, with request and opportunity to assume the defense, makes him, in the absence of fraud or collusion, a privy to the record, and binds him by it to the extent to which his rights were tried and adjudged. Ryerson v. Chapman, 66 Me. 557; Boston v. Worthington, 10 Gray (Mass.) 496, 71 Am. Dec. 678; Blasdale v. Babcock, 1 Johns. (N. Y.) 517. Quoting our own Judge Kent:

"When a person is responsible over to another, either by operation of law or by express contract, and he is notified of the pendency of the suit, and requested to take upon himself the defense, he is not afterwards to be...