Stillwell v. Hill

• Decision Date: 18 December 1917
• Citation: 87 Or. 112,169 P. 1174
• Parties: STILLWELL ET AL. v. HILL ET AL.
• Court: Oregon Supreme Court

169 P. 1174

87 Or. 112

STILLWELL ET AL. v. HILL ET AL.

Supreme Court of Oregon

December 18, 1917

On Petition for Rehearing, Jan. 15, 1918.

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by F. E. Stillwell and another against A. T. Hill and others. From judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

This is an action to recover damages for the breach of a contract for the sale of hay. Verdict and judgment went for plaintiffs and defendants appeal.

On September 22, 1915, the defendants, H. M. C. Company, and the plaintiffs, Stillwell & Proffitt, entered into an agreement in writing, whereby the former agreed to furnish to the latter 400 tons of hay, more or less, delivered in the stack upon its premises known as the H. M. C. Company ranch located in Union county, Or., at the price of $6 per ton, on measurement of 480 cubic feet to the ton. It was further contracted that Stillwell & Proffitt should have the privilege of using certain lands described in the contract for the purpose of pasturing live stock during the time they were feeding the hay purchased, for the sum of $350. The hay consisted of 25 certain stacks of hay selected and agreed upon by the parties, 23 of which were located upon the pasture lands mentioned. It is admitted that the 25 stacks contained 548 tons of 480 cubic feet each. About the time of signing the contract Stillwell & Proffitt turned several head of cattle into the pasture lands, where they remained during the fall and winter seasons of 1915 and 1916. On October 1 before the hay had been measured, a fire broke out upon adjoining lands and, without the fault of either of the parties to this action, spread over these lands and destroyed 13 stacks of the hay stacked thereon, amounting to 283 tons according to the measurement of the remaining portion. On October 22, the 12 remaining stacks were measured by the parties and found to contain 263 tons, for which the plaintiffs paid the defendants $6 per ton, aggregating $1,578, and also paid them $350 for pasture land, refusing to pay for the hay burned. Thereafter on January 9, 1916, H. M C. Company brought an action in the circuit court of the state of Oregon for Union county against Stillwell & Proffitt, alleging that they had sold and delivered on September 22, 1915, the pasture land mentioned for $350 and 548 tons of hay for $6 per ton aggregating $3,638, and that they had paid H. M. C. Company $1,928, leaving a balance of $1,710, for which judgment was asked.

Stillwell & Proffitt, as defendants therein, answered the complaint, denying the delivery of the hay burned or the delivery of more than 263 tons; alleging that they paid $1,578 for the 263 tons, and $350 for the pasture, aggregating $1,928, and, in effect, denying any liability for the hay burned, and prayed for "judgment against plaintiffs for their costs and disbursements" in the action, "and that they be allowed to go hence without delay." A reply was filed putting the cause at issue, and the same was tried to the court and jury, resulting in a verdict and judgment in favor of the defendants, Stillwell & Proffitt, for their costs and disbursements. No appeal was taken from this judgment.

In October, 1916, Stillwell & Proffitt brought this action to recover damages against H. M. C. Company, defendants, for the alleged breach of the contract of September 22, 1915, in failing, neglecting, and refusing to deliver to them 283 tons of the hay mentioned in the contract. To the complaint in this action the defendants, H. M. C. Company filed their answer putting in issue the allegations thereof, and, among other things, set up as a bar to the prosecution of this action the record and judgment in the former action of H. M. C. Co. v. Stillwell & Proffitt. To the separate answers the plaintiffs demurred on the grounds that the same did not state facts sufficient to constitute a defense. The demurrer was sustained by the court. The case was tried upon the issues made by the pleadings and resulted in a verdict and judgment in favor of the plaintiffs Stillwell & Proffitt, in the sum of $1,705. Owing to a ton or two of the hay having been used for a miscellaneous purpose there is a slight discrepancy in the figures of the number of tons.

Burnett J., dissenting.

C. H. Finn and Crawford & Eakin, all of La Grande, for appellants. F. S. Ivanhoe, of La Grande, for respondents.

BEAN, J. (after stating the facts as above).

The first question for determination is whether the judgment in the former action of H. M. C. Co. v. Stillwell & Proffitt, entered on March 19, 1916, is a bar to the prosecution of this action. From the pleadings in the former action which have been referred to briefly, it is noticed that Stillwell & Proffitt denied the delivery of more than 263 tons of hay, and affirmatively alleged that H. M. C. Company failed to deliver the balance of the 283 tons of hay mentioned in the contract. As we view the matter, this allegation amounted to no more than an affirmative denial. They did not in the first action plead their damages occasioned by the breach of the contract as a counterclaim or defense. It is a well-settled rule of law that when the second action between the same parties is upon a different claim or demand or cause of action, the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. This doctrine holds true whether the judgment is used in pleading as a technical estoppel, or is relied on by way of evidence as conclusive per se. In all cases it should appear that the first judgment determined the actual question at issue between the parties, and that the precise question was raised and decided in the former suit. On the other hand, it is equally well established that a fact which has been already tried and determined by a court of competent jurisdiction cannot be contested again between the same parties, and that where some controlling fact or question material to the determination of both actions has been determined in a former suit, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter suit. 15 R. C. L. p. 973, § 450; Barrett v. Failing, 8 Or. 152, 156; La Follett v. Mitchell, 42 Or. 465, 69 P. 916, 95 Am. St. Rep. 780; Ruckman v. Union Ry. Co., 45 Or. 578, 581, 78 P. 748, 69 L. R. A. 480; Paulson v. Oregon Surety Co., 70 Or. 175, 180, 138 P. 838; Cromwell v. Sac County, 94 U.S. 355, 356, 24 L.Ed. 195.

Section 449, p. 972, of 15 R. C. L., reads thus in part:

"While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact are not joined or embraced in the pleadings."

In the former action the defendants, Stillwell & Proffitt, could have set up their counterclaim for damages and had the same adjudicated therein, but they did not do so. They were not compelled to take such course or be precluded from bringing an independent action for the same. They had an election to use such cross-demand as a defense by way of recoupment or to bring a separate action upon it. The omission to take advantage of matter of counterclaim as a defense is no bar to a cross or separate action upon it, so that though the cross-claim be admissible by way of defense the defendant has an option to avail himself of it in that form or to sue upon it in another action. The reason for allowing the defendant such an option is that a different rule would greatly diminish the benefit to which he is entitled and in some cases wholly neutralize it. It may require some time for the development of the injury which will result from plaintiff's misconduct or default. It is unreasonable, therefore, that he should have the right to fix the time at which the money value of his wrongdoing or omission shall be ascertained. That right is given to the party not in default. 1 Sutherland, Damages (3d Ed.) § 187, p. 470; Bigelow on Estoppel (6th Ed.) p. 202. At page 203 of the last text-book mentioned, it is stated:

"No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judgment, carry another independent cause of action with it, it is difficult to understand how a judgment for the plaintiff without plea can extinguish a counter right of action by the defendant, however closely connected the two claims may be. Every one has the right to try his own case, and in his own way."

Stillwell & Proffitt, as defendants, had the right in the former action to elect as to whether or not they would plead and seek to recover on their counterclaim for damages when sued for the purchase price of the hay alleged to have been sold and delivered to them, or deny the delivery and bring an independent action for damages resulting from a failure to deliver. 19 Ency. Plead. & Prac. p. 731; 2 Black on Judgments, § 761; Pruitt v. Muldrick, 39 Or. 353-358, 65 P. 20; Hoover v. King, 43 Or. 281, 287, 72 P. 880, 65 L. R. A. 790, 99 Am. St. Rep. 754; Burnett v. Marrs, 62 Or. 598, 125 P. 838; Krebs Hop Co. v. Livesley, 59 Or. 574, 584, 114 P. 944, 118 P. 165, Ann. Cas. 1913C, 758. The question of the damages suffered by the present plaintiffs was not in issue nor adjudicated in the former action. The claim of plaintiffs in this action is not in any way inconsistent with the findings or questions determined in the former judgment.

Mr....