Spence v. Erwin
| Decision Date | 09 May 1946 |
| Docket Number | 15470. |
| Citation | 38 S.E.2d 394,200 Ga. 672 |
| Parties | SPENCE et al. v. ERWIN et al. |
| Court | Georgia Supreme Court |
Augustine Sams, of Atlanta, for plaintiff in error.
Madison Richardson, and Sutherland, Tuttle & Brennan, all of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
The plaintiffs in this case had previously brought a suit against the same defendants for the recovery of the same corporate stock for which they now sue, both suits arising out of the same transaction, and based on the same contract. In the former case, reported in 197 Ga. 635, 30 S.E.2d 50, 154 A.L.R. 1057, the suit was maintained on the theory that the stock had been pledged with the defendants as security for a loan, the maturity date of which was by oral agreement subsequently extended; that the written agreement denominating the transaction as a sale with an option in favor of the vendors to repurchase was but a guise to cover up usury. The plaintiffs in that case alleged that they were entitled to the stock, in that they had made a tender of the amount due on the alleged loan. This court held that the agreement set forth a valid contract of sale, coupled with an option, in favor of the vendors, to repurchase, and that the suit was properly dismissed on demurrer. The present suit is maintained on the theory that the contract between the plaintiffs and the defendants did in fact constitute a sale of the stock with an option, in favor of the plaintiff vendors, to repurchase by a specified date at a specified price; it being further alleged that while the time for exercising the option under the terms of the agreement had expired, its duration had been extended by oral agreement and for a valid and sufficient consideration. The plaintiffs now tender the amount due on the contract, treated as a sale with an option to repurchase. The court directed a verdict in favor of the defendants on the theory that the pleadings themselves showed that the plea of res judicata was good independently of any consideration of the other defenses made. Held:
1. 'A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Code, § 110-501.
(a) The rule just quoted states the doctrine of res judicata, and relates only to cases involving the same cause of action. A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. Worth v. Carmichael, 114 Ga. 699, 40 S.E. 797; Draper v. Medlock, 122 Ga. 234, 50 S.E. 113, 69 L.R.A. 483, 2 Ann.Cas. 650. In the latter case, there is an estoppel by the judgment only as to such matters as were necessarily, or as are shown to have been actually adjudicated in the former litigation. Scarborough v Edgar, 176 Ga. 574, 581, 168 S.E. 592; Sumner v Sumner, 186 Ga. 390(2), 197 S.E. 833.
(b) Accordingly, under the foregoing rules it is necessary to determine whether each of the two suits here involved related to one and the same or to separate and distinct causes of action, and whether if the cause of action be the same, the theory on which the second suit is sought to be maintained was of such a character as could have been set up on a separate count in the original action.
2. While the use of two or more inconsistent theories as to the right to recover in the same count would not be permissible, the common-law rule against such duplicity was at an early date relaxed by permitting the plaintiff to set out the different and inconsistent theories for recovery on the same demand in separate and distinct counts. McMillan v. Heard National Bank of Jacksonville, 19 Ga.App. 148(1), 91 S.E. 235. It is even permissible to join separate and distinct causes of action in the same suit by separate and independent counts, provided the causes be of a similar nature, Cooper v. Portner Brewing Co., 112 Ga. 894(3), 38 S.E. 91; but, as indicated in the previous paragraphs of this opinion, the rules governing res judicata do not compel one to thus join separate causes of action in order to escape the penalties of that doctrine. In order for the principles of res judicata to apply so as to bind a plaintiff as to any theory of his claim whether invoked or not, the cause of action in both cases must be the same.
3. Both suits being brought by the same plaintiffs against the...
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