Richardson v. Dell

• Decision Date: 20 December 1916
• Docket Number: No. 18202.,18202.
• Citation: 191 S.W. 63
• Parties: RICHARDSON v. DELL et al.
• Court: Missouri Supreme Court

191 S.W. 63

RICHARDSON v. DELL et al.

No. 18202.

Supreme Court of Missouri, Division No. 1.

December 20, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Augusta Richardson, administratrix of the estate of David P. Richardson, against John Dell and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This action was commenced by abovenamed plaintiff, as administratrix, etc., against said defendants, in the circuit court aforesaid, on January 17, 1913. The defendant Dee was not served with process and made no appearance to the action. Defendant Dell demurred to the petition, and alleged the following grounds in support of same: First. Because the petition does not state facts sufficient to constitute a cause of action against this defendant. Second. Because the allegations in the present petition are the same as those in the case of same plaintiff against the same defendants, decided by this court in 245 Mo. 317 et seq., 149 S. W. 15, except the additional averment in the present petition, alleging that plaintiff is entitled to recover $74,200 on account of defendants' failure to pay the taxes on said mining property, by reason of which it was forfeited to the republic of Mexico.

Third. Because the alleged cause of action set forth in plaintiff's petition, in the case at bar, is the same as that alleged in the case of same plaintiff, against the same defendant, which was tried in the circuit court aforesaid, decided by the latter in favor of said defendants, appealed to the Supreme Court and affirmed on June 20, 1912. 245 Mo. 317, 149 S. W. 15.

No question is raised as to the right of defendant to present, by demurrer, a plea of former adjudication; and as the appellant in her brief concedes that the present petition, down to the allegation in respect to the forfeiture of said mining property to the republic of Mexico on account of the nonpayment of taxes thereon, is identically the same petition as that described in the above case reported in 245 Mo. 317 et seq., 149 S. W. 15, between the same parties, we will deal with the case accordingly. Both petitions are set out in parallel columns of defendants' brief, and are shown to be the same down to above-mentioned point. We also have before us the original abstract of record and briefs filed in the former case. It not only appears that the petitions, as above indicated, are the same, but the propositions and authorities cited in the original brief of plaintiff in said cause are the same as those in the present brief of appellant, except Hannerty v. S. Theater Co., 109 Mo. 297, 19 S. W. 82, a suit in equity, which is not contained in the original brief. In the former trial, it appears that both the abovenamed defendants, Dee and Dell, as well as a number of other witnesses, were produced by plaintiff and testified in the cause. We have carefully examined the opinion of Commissioner Brown in the former case, which was approved by this division, and are satisfied with, and hereby adopt, his statement of the issues, pleadings and testimony, as set out in 245 Mo. loc. cit. 320 et seq., 149 S. W. 15. That part of the petition relating to the forfeiture of said mining property to the republic of Mexico on account of the alleged nonpayment of taxes will be considered in the opinion. It appears from respondents' statement that the foregoing demurrer was sustained by the trial court on June 16, 1913. Plaintiff refused to plead further, and on September 25, 1913, judgment was rendered in favor of defendant Dell on the demurrer aforesaid. From this judgment, plaintiff has appealed the case to this court.

Joseph Wheless, of St. Louis, for appellant. Jamison & Thomas, of St. Louis, for respondents.

RAILEY, C. (after stating the facts as above).

I. In considering the question of res adjudicata, we have carefully examined the record, briefs, and opinion in the former case between these same parties, based on the same allegations, down to the paragraph relating to alleged loss of the mining property for nonpayment of taxes. We are satisfied with the conclusions reached in the former case, where the same petition was before the court, and the testimony of plaintiff offered and considered in support of same. We see no reason for departing from anything determined or said in the original proceeding, and hence adopt the opinion and judgment therein as conclusive against plaintiff, in respect to all matters which come within the purview of the former petition.

In the recent case of Idalia Realty & Development Co. v. Norman, 259 Mo. loc. cit. 631, 632, 168 S. W. 749, 753, this court said:

"We are satisfied with the conclusion at which we then arrived after mature consideration and careful investigation; and, second, the former adjudication of the same question in the former suit between the same parties, upon the same evidence (the paper itself), is, even though the previous action was ejectment, conclusive in this. While a judgment in an ejectment suit is not a bar to another suit for the same premises, the action being only possessory, yet when the title is in issue, and the right of possession only an incident, it has all the consequences of an ordinary suit, when the parties are the same, the land is the same, and the evidence in support of the respective titles is the same. McAnaw v. Clark, 167 Mo. 443 ; Potter v. Adams, 143 Mo. 665 ."

The plaintiff is not only concluded by the former litigation as to all the questions within the pleadings decided therein, but as to every other matter fairly within the issues in said cause. Harrison v. Jackson Co., 187 S. W. loc. cit. 1184, 1185; Barnhart v. Little, 185 S. W. loc. cit. 177, and cases cited; McLure v. Bank, 263 Mo. loc. cit. 136, 172 S. W. 336; Hines v. Hines, 243 Mo. loc. cit. 495, 147 S. W. 774; Tie & Timber Co. v. Pulliam, 237 Mo. loc. cit. 18, 139 S. W. 144; Emmert v. Aldridge, 231 Mo. loc. cit. 128, 129, 132 S. W. 1050; Spratt v. Early, 199 Mo. loc. cit. 500, 97 S. W. 925; Donnell v. Wright, 147 Mo. loc. cit. 647, 49 S. W. 874; Mo. Pac. Ry. Co. v. Levy, 17 Mo. App. loc. cit. 507, 508.

Keeping in mind the law as above indicated, we will proceed to ascertain what was actually decided in the former litigation.

II. Commissioner Brown, speaking for this court, in 245 Mo. loc. cit. 331, 332, 149 S. W. 15, 18, 19, said:

"Whatever is involved in this suit grows out of the contract between Richardson and the Cacoma Mining & Smelting Company dated October 1, 1906, by which he sold or agreed to sell to it his mining properties in Mexico. The meaning and effect of that contract lies at the foundation of every question in the case. It not only provides in terms that the property which it affects shall not pass until fully paid for, but it is placed in escrow with the Commonwealth Trust Company to be delivered only upon the full performance of its terms. The written contract with the depository is a part of the transaction and must be read in connection with the contract of sale. No interest which Mr. Richardson may have had in the property which would have otherwise passed to his heirs at his death was conveyed by these instruments. Nor did the conveyance by Mrs. Dee to the defendant Dell, in which Mann concurred by a separate deed, deprive Mr. Richardson of any title or interest he may have had in the property. It could only operate, under the circumstances, to release such title or interest as the grantors had and to substitute Mr. Dell for themselves in their relation to Richardson.

"It follows that the real foundation of the controversy is the purchase price reserved in the contract between Richardson and the Cacoma Company, and that Mrs. Richardson, as the administratrix with the will of her deceased husband annexed, is the proper party to sue with reference to it; and she asserts that defendants are liable to her in damages because they have wrongfully deprived her of it by acts which she characterizes as conspiracy and fraud."

In discussing the damages, provided for in the contract between Richardson and the Cacoma Company, on page 333 of 245 Mo., on page 19 of 149 S. W., he said:

"The damages of the vendor are liquidated by a forfeiture of all amounts paid up to the time of default, so that the vendee escapes with a burden which he has already...