Miller v. Bulkley

• Decision Date: 27 March 1905
• Citation: 38 So. 99,85 Miss. 706
• Court: Mississippi Supreme Court
• Parties: JAMES W. MILLER v. HORACE G. BULKLEY

38 So. 99

85 Miss. 706

JAMES W. MILLER v. HORACE G. BULKLEY

Supreme Court of Mississippi

March 27, 1905

November 1909

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Miller the appellant, was plaintiff in the court below; Bulkley, the appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court.

In August, 1902, plaintiff ordered an automobile from defendant the price of which was $ 425, of which $ 100 was paid. After some correspondence between the parties--Miller wanting to test the machine in a certain way before paying for it, and Bulkley declining to allow the test made as requested--Miller, claiming that he had declined to accept the machine, brought suit in a justice of the peace's court against Bulkley to recover the $ 100 paid, where he recovered, and Bulkley appealed to the circuit court. Bulkley also brought suit against Miller to recover $ 325, the balance of the purchase money. Both cases were by consent tried together, and resulted in a verdict and judgment for Bulkley for the balance of the purchase money demanded. After the judgment in the other cases, Miller brought this suit against Bulkley to recover the money paid for the automobile alleging a breach of warranty. Bulkley filed, among other pleas, a plea of res adjudicata. To this plea plaintiff filed a replication as follows: "And the said plaintiff, to the said plea of the said defendant by him thirdly pleaded, saith precludi non, etc., because the said plaintiff saith that the said several promises and undertakings in the plaintiff's said declaration mentioned were not, nor was any or either of them, any of or any one of them, the same identical promises or undertakings as those, or any of those, in the said third plea mentioned, and for and in respect whereof the said supposed judgment in the said plea mentioned was recovered, in manner and form as the said defendant hath above in his said plea alleged. And this the said plaintiff prays may be inquired of by the country." Defendant demurred to this replication, and the court sustained the demurrer, and plaintiff then filed another replication. The issue thus joined on the plea was tried by the court, resulting in the plea of res adjudicata being sustained.

Affirmed.

K. P. Lanneau, and Reed & Brandon, for appellant.

The circuit court erred in rendering the order sustaining the defendant's demurrer to the plaintiff's replication to the defendant's third plea to the declaration, being a plea of res adjudicata.

That a judgment is of record in the former suit between Miller and Bulkley, and that said judgment is in favor of Bulkley, is not denied or attempted to be denied by Miller; but by his replication, which is demurred to, Miller intends to deny, and does deny, that a judgment for "the same cause of action" has ever been rendered against him. By this replication a question of fact for the jury is raised. The right to present evidence and testimony before the jury in support of the same is claimed.

In 3 Chitty on Pleadings (ed. 1851), in the chapter on Replications in Assumpsit, sec. 1158, we find the following form, authority, and precedent:

(Precludi non, as ante, 1145.) "Because he saith that the said several promises and undertakings in the said declaration mentioned were not, nor was any or either of them, any of or any one of the same identical promises and undertakings as those or any of those in said plea mentioned, and for and in respect whereof the said supposed judgment in the said plea mentioned was recovered, in manner and form as the said defendant hath above in his said plea alleged. And this the said plaintiff prays may be inquired of by the country," etc.

We now ask that this court will compare our replication with the foregoing form, and it will appear that the form has been strictly followed. We know of no higher authority upon the correct form of pleadings than Chitty, and are not aware that any later or better authority exists to support the claim that the above form is incorrect. The defendant says plaintiff does not by said replication deny that the supposed judgment was rendered in and for the same cause of action. We repeat that we do deny it, and Chitty said that the form used is the proper form of replication to a plea of judgment recovered denying that it was for the same cause of action. The plaintiff knew what he wished to deny, and selected for said purpose an approved form. It was for him, and not for the defendant, to say what he wished to deny; and we submit that the circuit court gravely erred in sustaining the demurrer and restricting the plaintiff to a replication in a different manner and form, when viewed from the standpoint of facts which the plaintiff denies and of facts he offers in his replication to prove, when he prays that the matter may be inquired of by the country.

By sustaining said demurrer to plaintiff's replication the court deprived the plaintiff of his right to introduce parol testimony in support of the fact that the cause of action in this suit is not the same as in the former suit. There is abundant authority to the effect that under this replication such testimony is proper and admissible. In fact, in this case it was really necessary for the enlightenment of the court. We ask the court to read the notes and authorities cited in 21 Am. & Eng. Ency. Law (1st ed.), 191, 192. We quote partially, "Parol evidence is admissible to show what was settled in the former suit," referring to evidence of what was adjudicated under the plea of res adjudicata.

In the former litigation the cause of action from Miller's point of view was his right to rescind an executory contract of purchase of a certain...