McKee v. Martin
| Decision Date | 01 May 1956 |
| Docket Number | No. 1837,1837 |
| Citation | 122 A.2d 868,119 Vt. 177 |
| Parties | W. Edson McKEE and Virginia S. McKee v. Elliot D. MARTIN. |
| Court | Vermont Supreme Court |
Monti & Calhoun, Barre, for plaintiff.
Paterson & Eldredge, Montpelier, for defendant.
Before JEFFORDS, C. J., and CLEARY, ADAMS, CHASE and HULBURD, JJ.
This is an action of contract. The defendant pleaded the general issue and special pleas in bar. Hearing was had on the special pleas, the pleas were denied, the defendant allowed an exception to the denial of each plea, and the cause passed to this Court before judgment pursuant to V.S. 47, § 2124. The defendant relies here on his special pleas of estoppel by verdict and res adjudicata. He has waived a third special plea which he filed in the trial court.
The plaintiffs, by writ dated December 29, 1954, brought an action of tort against this defendant, to recover damages for fraud in inducing the plaintiffs to enter into a contract for the construction of a dwelling house and garage, the foundation thereof, a concrete slab which constituted the floor of the house, and the filling of an excavation, all on a building lot owned by the plaintiffs on Towne Hill Road in the City of Montpelier. The cause was tried by jury at the March 1955 term of the Washington County Court and, at the close of the plaintiff's case, the court ordered a directed verdict for the defendant. Judgment was entered on that verdict on May 19, 1955.
The plaintiffs, by writ dated May 5, 1955, brought the present action of contract against the same defendant to recover damages for breach of the same contract in the construction of the same dwelling house, garage, foundation, concrete slab and filling of the excavation.
A former judgment is an absolute bar to a subsequent action only where the parties, subject matter and the causes of action are identical, or substantially so. Blondin v. Brooks, 83 Vt. 472, 480, 76 A. 184; Gilley v. Jarvis, 94 Vt. 135, 137, 109 A. 41; Cutler v. Jennings, 99 Vt. 85, 89, 130 A. 583; Fletcher v. Perry, 104 Vt. 229, 232, 158 A. 679; Turner v. Bragg, 115 Vt. 196, 198, 55 A.2d 268. But when some controlling fact or question material to the determination of both suits has been adjudicated by a court of competent jurisdiction and is again in issue between the same parties or their privies, the former adjudication will, if properly presented, be conclusive of the same fact or question in the second suit, although the two suits are not for the same cause of action. This is, technically speaking, an estoppel by verdict, because while there is no estoppel without the judgment which confers upon the finding contained in the verdict the sanction necessary to give it the effect of res judicata, the estoppel is not by the judgment, but by the verdict or finding. Spaulding v. Mutual Life Ins. Co., 96 Vt. 67, 73, 117 A. 376; Fletcher v. Perry, supra, 104 Vt. 229, 232, 158 A. 679.
It is enough, if it be shown that the precise question involved in the second suit was raised and determined in the first suit. Gray v. Pingry, 17 Vt. 419, 424. This doctrine is limited to such matters as are within the pleadings (as drawn or broadened by the conduct of the parties) in the former action, but it is equally applicable whether these matters are, themselves, the ultimate and vital ones, or only incidental to the main question, but essential to its decision. Cutler v. Jennings, supra, 99 Vt. 85, 89, 130 A. 583.
The defendant relies on the following quotations from Spaulding v. Mutual Life Ins. Co., supra, 96 Vt. 67, at pages 72, 73 and 76, 117 A. 376, at page 377: 'It is not the recovery but the matter alleged by the party, and upon which the recovery proceeds which creates the estoppel.' 'Every point that was expressly or by necessary implication in issue, and which must necessarily have been decided to support the judgment, is concluded.'
The defendant also relies on Turner v. Bragg, 117 Vt. 9, 11, 83 A.2d 511, 512. But there this Court held
The defendant claims that the same matters are in issue, must be actually litigated and determined, and the same points are controverted in the present action of contract as were determined and adjudicated by the directed verdict and judgment in the previous tort action; that the matters alleged in both cases in word and expression are identical with the exception of the allegation of scienter in the tort action.
The defendant's claims are not well founded. The two suits brought by the plaintiffs are not for the same cause of action, even though they relate to the same transaction. The tort action was for the alleged fraud of the defendant in inducing the plaintiffs to enter into the contract. The contract action is for the defendant's breach of the contract. In the tort action the plaintiffs alleged that, in order to induce the plaintiffs to enter into the contract, the defendant knowingly misrepresented to the plaintiffs the cost of materials, labor, construction of the buildings and the cost of filling the excavation, intending that the plaintiffs should rely on them and believe them, and believing them should enter into the contract with him which the plaintiffs did; and that, at the time of the misrepre-sentations, the defendant knew that the true costs were far in excess of those represented by the defendant and the damages sought were those alleged to have been caused by the defendant's fraud. In the contract action there is no allegation of fraud. In this action the plaintiffs allege that they have fully complied with the terms of the contract but allege that the defendant has failed, neglected and refused to do so, though requested to do so by the plaintiffs, and the damages sought are those alleged to have been caused by the breach of the contract. Thus it is seen that the issues here are not the same as those in the tort action.
The early case of Gates v. Goreham, 5 Vt. 317, 320,...
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