Terry v. Pipkin

• Decision Date: 11 June 1959
• Docket Number: No. 6547,6547
• Citation: 66 N.M. 4,1959 NMSC 49,340 P.2d 840
• Parties: Pat TERRY, Plaintiff-Appellant v. Sid PIPKIN, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 840

340 P.2d 840

66 N.M. 4

Pat TERRY, Plaintiff-Appellant v. Sid PIPKIN, Defendant-Appellee.

No. 6547.

Supreme Court of New Mexico.

June 11, 1959.

Smith & Smith, George M. Murphy, Clovis, for appellant.

Wesley Quinn, Clovis, for appellee.

MOISE, Justice.

This case involves the question of whether or not a judgment entered in an action on account due for goods, wares and merchandise sold by plaintiff to defendant is res judicata in a subsequent action in quantum meruit or in an action for restitution between the same parties for the same goods, wares and merchandise.

The facts are these: Plaintiff (appellant) is in the business of installing pumps. Defendant (appellee) had a pump on his property in Curry County, New Mexico, which was not functioning properly. Plaintiff pulled the pump, made certain repairs thereto and replaced it in defendant's well. Defendant paid him for pulling the pump and replacing it, but refused to pay for the repairs and plaintiff then filed a materialman's lien claim. Thereupon plaintiff sued in contract for the amount claimed to be due for the repairs and to foreclose the materialman's lien. Defendant answered by way of denial, and filed a cross-complaint for damages, to which plaintiff answered.

On the trial of this action the court found the issues in favor of defendant on the main suit and against defendant on his counterclaim, and made findings of fact and conclusions of law, of which we consider Findings 3, 5, 9 and 10 material. We quote them, as follows:

'3. That in the latter part of July of 1957, the defendant, Sid Pipkin, lost the use of an irrigation well situated upon his property due to mechanical failure of the well equipment and that he called one Murrel Jay, the Clovis distributor for Western Pump Company, who had sold him said irrigation well equipment; that the said Murrel Jay secured the service of the plaintiff, Pat Terry, of Bovina, Texas, for the purpose of removing the equipment from said irrigation well to examine it and determine the cause of its failure to operate.

'5. That at the time said machinery was taken to Friona, Texas, by the plaintiff, the defendant agreed to pay plaintiff for the removal of said machinery from the well and for the reinstalling of the same after it had been repaired.

'9. That as soon as the pump and pipe had been re-set the defendant paid the plaintiff for his work in pulling and resetting the pump and pipe.

'10. That this defendant has paid to this plaintiff all that he contracted to pay for and is not now indebted to the plaintiff.'

Judgment was entered dismissing plaintiff's complaint and defendant's counterclaim. Thereafter, plaintiff filed the present action, alleging that he was entitled to the reasonable value of his services in making the repairs to the pump (being almost the identical amount sued for before) and in a second alternative count asked for the return of the parts replaced together with reasonable rental thereon and expenses expended in connection therewith and tendered back all the parts removed by him, or the salvage value of parts which he could not return, and again sought foreclosure of the materialman's lien. Defendant filed a motion to dismiss setting forth three grounds, the one material to this appeal being a plea of res judicata, in that the issues in this case had been determined in the previous case. From an order sustaining the motion to dismiss on the ground of res judicata and dismissing plaintiff's complaint this appeal is prosecuted.

This appeal is argued under two points. Both points, however, raise the single question of the correctness of the court's conclusion that the first suit between the parties was res judicata of the issues raised by each of the two counts in the second action.

In our opinion we need to look no further than our decision in the case of Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 638, 142 A.L.R. 1237, for the answer to the problem here presented. A reading of the decision in that case will disclose the close similarity in the two cases.

In Paulos v. Janetakos, supra, we stated that 'a prior judgment in a different cause of action between the same parties operates as an estoppel only as to questions, points or matters of fact in issue in that cause which were essential to a decision, and which were decided in support of the judgment.' An issue of fact as used in the decision is then defined as one 'the determination of which is material, relevant, and necessary to a decision of the case upon its merits.' It is further defined as 'an ultimate fact, such as is required in allegations of fact in good pleadings, or in findings of fact in case tried to the court. It is the ultimate fact, the fact without which the judgment would lack support in an essential particular.'

We need only inquire as to whether the action in the instant case is on a different cause of action, and if so, whether or not the facts found in deciding the first case and which must be decided differently in the second case in order for the plaintiff to prevail were 'matters of fact in issue (in the first case) which were essential to a decision.' It is clear that an action in quantum meruit is a different cause of action, from one on contract, and is not barred by a prior suit on contract. Bassis v. Rutenberg, 177 Pa.Super. 339, 110 A.2d 897; Zawada v. Pennsylvania System Board of Adjustment, 392 Pa. 207, 140 A.2d 335; Lorang v. Flathead Commercial Co., 112 Mont. 146, 119 P.2d 273.

To the same effect is the law where a plaintiff is not entitled to recover for breach of contract, but is entitled to restitution, a judgment against him in the breach of contract action does not bar a subsequent action for restitution. Meirick v. Witteman Lewis Aircraft Co., 98 N.J.L. 531, 121 A. 670; 56 Harvard L.R. 26.

Since this suit is based on a different cause of action from the first one, were the ultimate facts decided in the first case determinative of the issues in the second case? As we conceive it, the only finding that could possibly be argued as having such effect is Finding No. 10 quoted above. When the court found that defendant 'is not indebted to the plaintiff' did it intend to find that he was not indebted for any cause or under any circumstances? Such could not have been the intention because it was outside the issues of a contract case to determine anything beyond whether or not the defendant was indebted on his contract. The court must have intended to limit its finding to the fact that defendant had paid 'plaintiff all that he contracted to pay for and is not now indebted to the plaintiff' for any amount on the contract. This is an ultimate fact and is the full limit to which the finding could go in the first case. Evidence on quantum meruit would not have been admissible in a case based on express contract. Campbell v. Hollywood Race Ass'n, 54 N.M. 260, 221 P.2d 558.

Insofar as any attempt is made to have the finding foreclose indebtedness for any reason, it would be beyond the issues in the case, and not be beinding to estop the relitigation of the same issue in a different case. Paulos v. Janetakos, supra. With this finding eliminated as a bar to the second case, we do not perceive of anything else to prevent the prosecution of the same.

Defendant quotes from Freeman on Judgments in an effort to support his position. That Freeman in his work does not agree with defendant's position is evident from the following quotation from Vol. 2, p. 1552, Sec. 736, of his work (Fifth Edition):

'Failure to recover in an action on an express contract does not bar an action on an implied contract arising from the same transaction. * * * An action based upon the existence of an express contract involves a different cause of action from an action of quantum meruit, though founded upon the...