Schriver v. Eckenrode
| Decision Date | 17 June 1878 |
| Citation | 87 Pa. 213 |
| Parties | Schriver <I>versus</I> Eckenrode. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent
Error to the Court of Common Pleas of Adams county: Of May Term 1878, No. 10.
R. G. McCreary, for plaintiff in error.—The cause of action in the former suit was not either in form or substance the same as in the present. It was in form ex delicto and the claim in it was for unliquidated damages in tort, involving nothing in the nature of contract. The present suit is assumpsit, to recover a sum of money claimed under a contract of guaranty, and the amount ascertainable by calculation.
To support the former action, proof of wilful deceit was the essential matter. In this suit the right to recover depends on evidence of a contract.
A former verdict and judgment, to operate as an estoppel, must have been for the same cause of action; the same fact must have been at issue, and the test by which the identity is to be established is when the same evidence will support both actions: 1 Starkie Ev. 262; 1 Greenleaf Ev., § 528; Connery v. Brooke, 23 P. F. Smith 80.
The former judgment is not conclusive of anything not directly decided by it, or that was not material to the decision. The precise question sought to be established in the latter suit must have been the basis of the former adjudication, and not incidentally or collaterally brought into it: Tams v. Lewis, 6 Wright 402, 410; Hibshman v. Dulleban, 4 Watts 183, 190; Kelsey v. Murphy, 2 Casey 78, 83; Finley v. Hanbest, 6 Id. 190; Carmony v. Hoober, 5 Barr 305.
David Wills, for defendant in error.—The subject-matter of both suits is the deficiency in land, and this is not a collateral question in either suit, but is the basis of both. The judgment recovered in the first case is evidence because the cause of action is the same, although the form of the second action is different from the first: Broom's Leg. Max. *327, and cases cited. It does not depend on the form of the suit; for the inquiry in every case is, whether the former recovery was for the same thing, or whether the grounds of controversy in the two actions are the same. When a party has several remedies for an injury, the adoption of one of them and a recovery or satisfaction in it, will be a bar to a recovery in any other form of action: Gilchrist v. Bale, 8 Watts 355; Garvin v. Dawson, 13 S. & R. 246; Finley v. Hanbest, 6 Casey 190; Rice v. King, 7 Johns. 20.
The plaintiff alleges that the court below erred in entering judgment for the defendant upon the plea of former recovery. The action here is assumpsit. The plaintiff declared upon a contract of guaranty — the guaranty being that a certain tract of land purchased by the plaintiff from the defendant, contained one hundred and forty-four acres, while, as the narr. alleges, it contained but one hundred and thirty-two acres and one hundred and twenty-six perches. The damages claimed were $350, being the value of the eleven acres and thirty-four perches alleged to be deficient.
The former suit was an action on the case for deceit. The declaration set forth "that the said defendant then and there well knowing the premises, and that the said farm contained but one hundred and thirty-two acres and one hundred and twenty-six perches of land, and that the said plaintiff was ignorant of the fact, and contriving and intending to deceive and defraud the plaintiff in this regard, wilfully, falsely and covinously stated and declared to the said plaintiff that said farm contained one hundred and forty-four acres, and by means of said wilful, false and covinous statements and declarations then and there deceived the said plaintiff, and caused him to believe that said farm did contain one hundred and forty-four acres," and then goes on to aver that the plaintiff was induced to buy the farm by means of said false statements, and claims...
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