Savage v. N. Anson Mfg. Co.

• Decision Date: 06 June 1924
• Citation: 124 A. 721
• Parties: SAVAGE v. NORTH ANSON MFG. CO.
• Court: Maine Supreme Court

124 A. 721

SAVAGE

v. NORTH ANSON MFG. CO.

Supreme Judicial Court of Maine.

June 6, 1924.

I Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Party (In Practice); Privity—Privy.]

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

Action by Albion L. Savage against the North Anson Manufacturing Company. Verdict was directed for defendant, and plaintiff excepts. Exceptions sustained.

Argued before PHILBROOK, DUNN, MORRILL, WILSON, DEASY, and STURGIS, JJ.

Frank A. Morey, of Lewiston, for plaintiff.

Butler & Butler, of Skowhegan, and Frank W. Butler, of Farmington, for defendant.

WILSON, J. In July, 1918, the defendant made an offer in writing to the plaintiff to buy at a stipulated price per thousand feet pine, spruce, and fir logs; the written offer being in part of the following tenor:

"We understand that you are about to make a contract with the Stratton Mfg. Co. for whatever pine they may have on their hands situated at Coplin plantation. We will buy this from you cut down to 10" on the stump, etc.

"For this pine we will pay you $24 delivered into the Dead River Corporation in due course for the drive of 1919.

"On the spruce, fir and pine which you think you may cut on the Mary Potter lot so called we would take the spruce and pine of this cut in the same way and at the same price, and for the fir saw logs which you may get in cutting this lot we would pay you $20 per M feet. And the same terms and prices and conditions, etc., would apply on the Bert Hammond farm, if you decide to cut that."

The omitted parts of the offer have no bearing upon the question at issue in this case. The above proposal was accepted by the plaintiff by simply writing the word "accepted" at the bottom of the proposal and affixing his signature thereto.

Before beginning operations on any of these lots the plaintiff, in the fall of 1918, called the manager of the defendant company on the telephone and, in substance, said to him that the expense of operating had so materially increased since July, when its proposal was made and accepted, that he could not afford to cut any logs at the prices fixed therein. The manager himself testified that, as it was of great advantage to the defendant to obtain all the logs it could that season, he told the plaintiff to go ahead and cut, and the defendant would make it right with him.

Before actually beginning operations, however, the plaintiff, accompanied by one Hanscom, of the firm of Hanscom & Blanchard, purchasing agents of the defendant at that time, visited the offices of the defendant and had a conference with its manager in person for the purpose of fixing the price of the logs which might be cut and delivered by the plaintiff during the coming winter.

As a result of this conference, it was finally orally agreed that the plaintiff would proceed to cut and the defendant would pay him the same price for fir logs as had been previously fixed for spruce and pine, viz. $24 per thousand, which was $4 more per thousand than the sum named for such fir logs as might be delivered under the original proposal.

Acting upon this offer, the plaintiff began operations and, as appears by his declaration in this action, cut fir logs not only on all the lots mentioned in the original written proposal, but also upon a fourth lot, not mentioned therein, and described in the declaration as the "Dudley land," and delivered to the defendant in the spring of 1919 a total of 437,705 feet of fir logs, for which he claims he is entitled to be paid at the rate of $24 per thousand.

It appears, however, that he has already received on account of the fir logs delivered the sum of $8,754.10, or at the rate of $20 per thousand. This action of assumpsit on an account annexed is now brought to recover what he claims is the balance due him for fir logs at the price of $24 per thousand, agreed upon at the conference with the defendant's manager.

Upon the evidence presented, the presiding justice, at the close of the trial, on motion of the defendant, directed a verdict for the defendant, and the case is now before this court on the plaintiff's exceptions to this ruling.

It appears from the evidence that the same fir logs at $24 per thousand were included in an action brought against this defendant by Hanscom & Blanchard, its purchasing agents, and that this plaintiff testified in that action; that the presiding justice in that action held that the promise for fir logs was without any consideration; and as a result Hanscom & Blanchard only recovered on a basis of $20 per thousand for the fir logs furnished by this plaintiff, which sum so recovered was paid to him by Hanscom & Blanchard.

The defendant in his pleadings in the case at bar sets up the defense that this plaintiff is now bound by the judgment recovered in the former action brought by Hanscom & Blanchard.

It is a general and fundamental rule that judgments to be binding must be for the same cause of action and between the same parties or their privies. Under the term "parties," the law includes all persons who, though not nominally parties, but being directly interested in the subject-matter, have a right to make a defense, or to control the proceedings, and to appeal from the judgment of the court, which right also includes the right to adduce testimony and cross-examine witnesses offered by the other side. Persons not having these rights are regarded as strangers to the cause, and, of course, are not bound. Greenleaf on Ev. vol. 1, § 523; Cecil v. Cecil, 19 Md. 72, 80, 81 Am. Dec. 626; Lovejoy v. Murray, 3 Wall. 1, 19, 18 L. Ed. 129. Privies with respect to judgments are those who have some mutual or successive relationship derived from one of the parties and accruing subsequent to the commencement of the action. 23 Cyc. 1253, 5, b; Blgelow on Estoppel, p. 142; Seymour v. Wallace, 121 Mich. 402, 80 N. W. 242; Orthwein v. Thomas, 127 Ill. 554, 21 N. E. 430, 4 L. R. A. 434,11 Am. St. Rep. 159. To give full effect to this rule, however, all persons represented by the parties, and who claim under them, are equally concluded.

While the record of the former judgment was not introduced in evidence, it is, of course, apparent that the plaintiff in this action was not nominally, at least, a party to the former proceedings. While it appears that he testified in the former action, it does not appear what the nature of his testimony was.

At some point in his testimony, the justice then presiding halted the case, and, in substance, the following colloquy between court and counsel for Hanscom & Blanchard took place:

The Court: You claim you have a legal claim against the North Anson Manufacturing Company, in favor of this man (referring to Mr. Savage who was then on the stand) or this man has a legal claim?

Counsel: We claim so, but I am not his (Mr. Savage's) attorney. He has gone on and stated his position, and, if I was his attorney, that would be one thing, but I am not, and I am not authorized to speak for him.

The Court: The question here is between Hanscom & Blanchard and the North Anson Manufacturing Company. If this man knows what the balance due is from the North Anson Manufacturing Company, to Hanscom & Blanchard, he can testify, but as to what is due between him and Hanscom & Blanchard is not material, or between him and the North Anson Manufacturing Company. This case is between Hanscom & Blanchard and the North Anson Manufacturing Company.

Counsel: "We don't want them [referring to defendant company] to be in this position. When they get done with this case, they will say: 'Here is a charge by Hanscom & Blanchard, and therefore he [meaning Mr. Savage] can have nothing.' If they should discount his bill, he is in a position to want to collect his claim against the North Anson Manufacturing Company. We have put it in our claim, because we believed there was the place for it, but it appears from his contract that he had also got a bill against the North Anson Manufacturing Company. Now we don't want to be held to him and let counsel for the company cut us out of getting our pay from the North Anson Manufacturing Company. If they release us entirely from this, and if Mr. Savage releases Hanscom & Blanchard from any further action in regard to the balance due of $10,000, we will strike it out of our writ, hut, if we are to be held, we want our money."

Without any other evidence as to the grounds on which Hanscom & Blanchard recovered for the fir logs in the former action, or the participation of this plaintiff therein, except that he accepted from Hanscom & Blanchard the sum recovered by them, but not, as he testified, in settlement of his claim, this court is asked to hold as a matter of law that this plaintiff is bound by that judgment.

Upon such evidence it can hardly be said that, as a matter of law, this plaintiff had such control over the former proceedings, brought by Hanscom & Blanchard primarily to enforce their own claim (Hanscom v. North Anson Mfg. Co., 120 Me. 220, 113 Atl. 179), as would permit him to appeal from the judgment, or except to the rulings of the court, to adduce testimony in his own behalf, or cross-examine witnesses. Nor does the fact that he had an interest in the suit and testified, by itself, render the Judgment binding upon him....