McFarlane & Co. v. Kipp
| Decision Date | 18 May 1903 |
| Docket Number | 60 |
| Citation | 55 A. 986,206 Pa. 317 |
| Parties | McFarlane, Appellant, v. Kipp |
| Court | Pennsylvania Supreme Court |
Argued March 19, 1903
Appeal, No. 60, Jan. T., 1903, by plaintiffs, from judgment of C.P. Bradford Co., Sept. T., 1899, No. 238, for defendant non obstante veredicto in case of James McFarlane & Company v. H.E. Kipp, G.W. Kipp and E.F. Kizer, trading as Hiram Frisbie & Company and G.W. Kipp & Company. Affirmed.
Assumpsit against a partnership. Before NILES, P.J.
The facts appear by the opinion of the Supreme Court.
Error assigned was in entering judgment for the defendants non obstante veredicto.
The appellants having recovered once against Horace E. Kipp cannot do so again for identically the same claim in this suit against him and others, now alleged to be his copartners, and the judgment in favor of the defendants non obstante veredicto, is affirmed.
A. T Freedley and D. C. De Witt, with them I. McPherson, for appellants. -- The record and judgment in the former action is not a bar to a recovery in the present action: Baker v. Small, 17 Pa.Super. 423.
Identity of parties does not exist: Shafer's App., 99 Pa. 246; Fagely v. Bellas, 17 Pa. 67; Allen v. Union Bank of Louisiana, 5 Whar. 420; Hampton v. Broom et al 1 Miles, 241; White v. Smith and Robinson, 33 Pa. 186; Sheble v. Strong et al., 128 Pa. 315; Rundell v. Kalbfus, 125 Pa. 123.
The fact that Horace E. Kipp was a member of the firm against which the former judgment has been recovered, and is a member of the firm against which the verdict in the present action has been rendered, does not prevent the entry of judgment on the verdict in favor of the plaintiffs: Wallace v. Fairman, 4 Watts, 378; Potter v. McCoy, 26 Pa. 458.
Inasmuch as the former judgment against Horace E. Kipp was not recovered against him as a member of the firm sued in this action, the case does not come within the letter of the acts of 1830 and 1848: Vaneman v. Herdman, 3 Watts, 202, 203; Moore v. Hepburn, 5 Pa. 399; Moore's Appeal, 34 Pa. 411; Miller v. Reed, 27 Pa. 244; Campbell v. Steele, 11 Pa. 394; Bowman v. Kistler, 33 Pa. 106.
William Maxwell and Rodney A. Mercur, with them James H. Codding and William T. Davies, for appellees. -- A judgment recovered against one partner is a bar to a subsequent suit against both, though the new defendant was a dormant partner at the time of the contract and was not discovered till after judgment: Smith v. Black, 9 S. & R. 142; Anderson v. Levan, 1 W. & S. 334; United States v. Ames, 99 U.S. 35.
The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question in the proceedings which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could be made the subject of another proceeding. . . . In order to render a judgment effectual as a bar it must appear that the cause of action is the same in substance and can be sustained by the same evidence: Schwan v. Kelly, 173 Pa. 65; Hartman v. Incline Plane Co., 2 Pa. Superior Ct. 123; Hartman v. Incline Plane Co., 11 Pa.Super. 438; Corry v. Corry Chair Co., 18 Pa.Super. 271.
There can be but one final judgment in any personal action, whether founded in contract or in tort: O'Neal v. O'Neal, 4 W. & S. 130; Noble v. Laley, 50 Pa. 281; Russell v. Archer, 76 Pa. 473; Com. v. McCleary, 92 Pa. 188; Murtland v. Floyd, 153 Pa. 99.
Where a recovery has been had in a suit, in which the plaintiff counted for an entire sum, the record of such recovery is a conclusive bar to another suit brought on the same contract, to recover a sum which was included in the declaration in the first suit: Hess v. Heeble, 6 S. & R. 57; Ingraham v. Hall, 11 S & R. 78; Kilheffer v. Herr, 17 S. & R. 319; Carvill v. Carrigues, 5 Pa. 152; Logan v. Caffrey, 30 Pa. 196; Alcott v. Hugus, 105 Pa. 350; Buck v. Wilson, 113 Pa. 423.
A verdict and judgment between the same parties or their privies, on the same subject-matter, though in a different form of action, is admissible and conclusive: Marsh v. Pier, 4 Rawle, 273; Kean v. McKinsey, 2 Pa. 30.
Before MITCHELL, DEAN, FELL BROWN and POTTER, JJ.
In 1893, Hiram Frisbie and Horace Kipp, trading as Hiram Frisbie & Company, brought suit against James McFarlane & Company in the court of common pleas of Bradford county to December term, 1893, No. 331, to recover damages for an alleged breach of a lumber contract. When the case came to trial there was a verdict rendered on April 17, 1901, in favor of the defendants, under their plea of set-off, for $10,644.76. While that suit was pending, the appellants, on June 7, 1899. in the same court brought suit against H. E. Kipp (who was the Horace Kipp in the other suit), G.W. Kipp and E.F. Kizer, trading as Hiram Frisbie & Company and G.W. Kipp & Company. This second suit was for precisely the same claim for which the plaintiffs, as defendants in the former suit, under their plea of set-off, recovered a judgment against Hiram Frisbie and Horace Kipp, trading as Hiram Frisbie & Company. The verdict of the jury in the second suit was for $11,421.82.
Instead of pleading in abatement in the first suit that G. W. Kipp and E. F. Kizer, now alleged to be copartners of Frisbie and H. E. Kipp, had not been named as plaintiffs, the defendants went to trial, electing to stand on their plea of set-off to recover a judgment against the plaintiffs on the record. It is true that, in an anomalous way, they did try, after the verdict and certificate had been returned in their favor, to insert the names of G. W. Kipp and E. F. Kizer as plaintiffs, and succeeded in doing so; but the whole proceeding was so grossly irregular that we reversed the judgment entered against G. W. Kipp and Kizer and ordered their names to be stricken from the record: Frisbie v. McFarlane, 196 Pa. 116.
In the present case the question reserved by the court was, whether the plaintiffs can now recover on their claim, which is the identical one used by them in their recovery against one of the present defendants, plaintiff in the suit to December term, 1893, No. 331. Having been of opinion that the plaintiffs could not use their claim a second time for the purpose of obtaining a second judgment against the firm of Hiram Frisbie & Company and Horace E. Kipp, the judgment was directed to be entered for the defendants non obstante veredicto, and the only question for our consideration is the correctness of the judgment so entered.
McFarlane & Company had but one cause of action against the firm of Hiram Frisbie & Company, whoever may have composed it. Instead of enforcing it in the present suit, they saw fit to do so, under their plea of set-off, in the former one, in which H. E. Kipp, as a member of the firm, was one of the plaintiffs. By that plea, when they insisted upon a certificate in their favor, which they received from the jury, they became the actors, and, having recovered once against Horace E. Kipp, upon the joint contract of the copartnership, neither he nor any of the others jointly bound with him, but who may not have been joined with him as a plaintiff, can be subjected to a suit by the defendants against him and them for identically the same...
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