Shook v. Sachs

Decision Date13 December 1915
Docket Number48
Citation181 S.W. 141,121 Ark. 342
PartiesSHOOK v. SACHS
CourtArkansas Supreme Court

Appeal from Clay Circuit Court, Western District; J. F. Gautney Judge; reversed.

STATEMENT BY THE COURT.

Louis Sachs instituted this action against R. Y. Shook to recover on three promissory notes for five hundred dollars each. The defendant answered and admitted the execution of the notes entered a plea of res adjudicata, and further pleaded that the notes had been paid. Further facts will be stated in the opinion.

The court directed a verdict for the plaintiff, and from the judgment rendered, the plaintiff has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

C. T Bloodworth, for appellant.

1. The plea of res adjudicata should have been sustained. 29 Ark 83; 57 Ark. 500; 107 Ark. 41; 174 S.W. 247; 175 S.W. 338; 12 La.Ann. 755; 23 Cyc. 1169, 1170, 1171.

2. The court erred in instructing the jury to find for the plaintiff. There was testimony which, if believed, would have justified the jury in finding for the defendant. 76 Ark. 96; Id. 538; 63 Ark. 94; 71 Ark. 305; 73 Ark. 561.

3. The court erred in excluding the evidence offered by appellant as to the agreement between himself and appellee after the rendition of the decree in the chancery court. Appellant unquestionably had the right, after the decree and before sale, to pay of the decree and keep the land, and the equity of redemption afforded ample consideration for the agreement.

M. P. Huddleston, Robert E. Fuhr and J. M. Futrell, for appellee.

1. The plea of res adjudicata was properly overruled. The decree rendered in the chancery court shows on its face the matters there adjudicated, and that a consent judgment was there taken only on the note due January 1, 1913, and interest on the remaining notes due at that time.

Each note constitutes a separate cause of action and will support a separate judgment. 94 U.S. 351; 23 Cyc. 1173; Freeman on Judgments, § 227A; Id. § 238; 77 N.Y. 420.

2. The testimony with reference to the alleged agreement was properly excluded because (1) it fails to show whether the conversation took place before or after the institution of the suit in the Greene Chancery Court. (2) If it took place after the release deed by the Missouri State Life Insurance Company, his right of redemption was gone, and, to be competent testimony, the agreement should have been in writing. 20 Cyc. 232; 56 Ark. 130; 43 N.E. 93. (3) The agreement was without consideration.

OPINION

HART, J., (after stating the facts).

It is contended by counsel for the defendant that the court erred in refusing to sustain his plea of res adjudicata. To sustain his plea, the defendant introduced the pleadings and judgment in another case to the following effect; the defendant entered into a contract to purchase from the plaintiff a certain tract of land and executed his five promissory notes for five hundred dollars each in payment therefor. The plaintiff executed his bond for title to the defendant, conditioned that on the punctual payment of said notes, he would convey the land to the defendant. The defendant transferred his bond for title to certain parties. Subsequently these parties and the defendant executed to other parties a timber deed conveying the title to all of the hickory and white oak timber growing on the land. Sachs instituted a suit in the chancery court in which these facts were set up with the additional fact that his contract contained a provision that when default should be made in the payment of one note, all of the notes should become due. The prayer of his complaint was for judgment on all the notes, and that the amount thereof be declared a lien on the lands.

The defendant Shook answered and admitted the execution of the notes, but denied that any of them was due, except the first one.

The court, by consent of the parties, entered a decree in favor of the plaintiff for the first note and interest on all of the notes. The amount of the judgment was declared a lien upon the lands and upon default of the payment thereof within the...

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