Tutt v. Price

• Decision Date: 06 May 1879
• Citation: 7 Mo.App. 194
• Parties: DENT G. TUTT, Appellant, v. CELSUS PRICE ET AL., Respondents.
• Court: Missouri Court of Appeals

7 Mo.App. 194

DENT G. TUTT, Appellant,

v.CELSUS PRICE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

May 6, 1879.

1. If it clearly appears from the record in a former proceeding between the same parties what issues were therein determined, the question whether the issues in the pending action were passed upon in the former is a question of law.

2. If the issue is in doubt, extrinsic and parol testimony may be induced to determine the matter; and if this testimony is excluded, it is error to submit the question to a jury by instructions.

3. That a judgment may be a bar, it must appear, either from the record of the former suit or by extrinsic evidence, that the issue in the pending action was raised and determined in the former suit.

4. Where a release, absolute in its terms, but called by the parties a ““conditional release,” is executed in contemplation of a composition of creditors it is competent to show by parol an express condition that all releases to be executed should be binding only in the event of all the creditors coming into the arrangement.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

W. H. CLOPTON, for appellant: The release offered in evidence was no defence.-- Perkins v. Lockwood, 100 Mass. 249; Harriman v. Harriman, 12 Gray, 341; Price v. Connor, 3 Mo. 453; Goodman v. Cheeseman, 2 Barn. & Adol. 328; Eaton v. Lincoln, 13 Mass. 424; Grover v. Wakeman, 11 Wend. 187. The plea of res adjudicata was not sustained.-- Lindell v. Leggett, 1 Mo. 432; Offut v. John, 8 Mo. 120; Taylor v. Larkin, 12 Mo. 103; Bell v. Hoagland, 15 Mo. 360; Ridgely v. Stillwell, 27 Mo. 128; Clemens v. Murphy, 40 Mo. 121.

JOSEPH T. TATUM, for respondents: It is not essential to the validity of a release by a creditor that other creditors should also release.-- Farrington v. Hodgton, 119 Mass. 453; Perkins v. Lockwood, 100 Mass. 249; Eaton v. Lincoln, 13 Mass. 424. Parol evidence that the release was conditional was inadmissible.-- Van Bokkelen v. Taylor, 62 N. Y. 105.

HAYDEN, J., delivered the opinion of the court.

In defence to the present action, brought upon two promissory notes executed by the defendants as members of the firm of Sterling Price & Co., the defendants claimed that, becoming embarrassed in 1873, they made a settlement with the creditors, of whom the plaintiff was one, by which, in consideration that the defendants forbore filing a petition in bankruptcy, and surrendered their property to an assignee for equal distribution among accepting creditors, such creditors, among others the plaintiff, released, in writing, the defendants from any obligation on the notes here sued upon. A further defence was that suit in the present causes of action had formerly been brought, and decided adversely to the plaintiff, in a United States court.

It appeared in evidence that a deed of assignment of all the property of the firm was by the defendants executed in December, 1873; that, in 1874, a committee of the creditors, of which the plaintiff was a member, recommended to the creditors that a full release from their liabilities be given to Sterling Price & Co., on surrender by them of all their assets. The defendants surrendered all their assets, a proportionate share of which the plaintiff received upon the notes here sued on. The defendants did not go into bankruptcy. The plaintiff signed a release as follows:--

[Conditional Release.]

“In consideration of a full release and surrender by Sterling Price & Co., of St. Louis, Mo., of all their property to George J. Davis, assignee, to be by him distributed pro rata among the creditors, the undersigned hereby release Sterling Price & Co. from all further liability on account of their present indebtedness. Dated at ____________, the _____ day of _________, 1874.

[Signed]

TUTT, SMITH & Co.”

Becoming dissatisfied, the plaintiff afterwards filed a petition against the defendants to put them into bankruptcy, on the ground of suspension of commercial paper,-- i. e. the present notes,--to which the defendants pleaded the release here relied upon. The transcript of the record of the District Court, here in evidence, shows a judgment of dismissal; afterwards the plaintiff brought the present suit. There was judgment in the court below for the defendants.

This case must be reversed on the ground of erroneous instructions given to the jury in regard to the defence of a former adjudication of the issues here presented. It is impossible to say that the jury may not have found against the plaintiff upon the instruction given below; yet this instruction is erroneous, and not warranted by the evidence: “That, if the jury find from the evidence that the same issue has been passed upon in a proceeding between the same parties in the United States District Court, then said judgment of said District Court aforesaid is a bar to the plaintiff's right of recovery herein, and the jury must find for defendants.” If, as the defendants now contend, it appeared from the transcript itself, and apart from extrinsic evidence, that the issue had been passed upon in the former case, then the question whether such was the fact ought not to have been submitted to the jury, as it is by the above instruction; for the question was one of law, it depending on the record. If, on the other hand, the question was for the jury, as put by the instruction, it could only have been because the extrinsic evidence, as presented by the testimony of witnesses, made it incumbent on the court to submit the question to the jury as one of fact....