Union R.R. & Transp. Co. v. Traube

• Decision Date: 31 March 1875
• Parties: UNION RAILROAD AND TRANSPORTATION CO., Respondent, v. EDWARD TRAUBE, Appellant.
• Court: Missouri Supreme Court

59 Mo. 355

UNION RAILROAD AND TRANSPORTATION CO., Respondent,

v.EDWARD TRAUBE, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

Slayback & Hæussler, for Appellant.

The agreed case shows that the present counter-claim was not an issue, and the merits of it not disposed of in the former suit, and hence the prior judgment is no bar. (2 Phil. Ev., 17, 18 [Cow. & Hill, notes 261]; Id., 4; 2 W. Black, 827; 3 Wils., 304; Goodson vs. Smith, 2 Moore, 157; Seldon vs. Tutop, 6 T. R., 607; Thorpe vs. Cooper, 5 Bing, 129; Hadley vs. Green, 2 Tyrw., 390; Davenport vs. Hubbard 45 Vt., 200; 43 Vt., 410; Snider vs. Croy, 2 Johns., 227; Phillips vs. Berrick, 16 Johns., 136; Hale vs. Andrews, 6 Cow., 225; Wheeler vs. Van Honten, 12 Johns., 311-313; Coleman's Appeal, 62 Penn. St., 252.)

The former suit only decided that Traube owned the rice. It embraced no charge against the carrier for damages arising from failure to deliver the rice in St. Louis according to his contract.

The counter-claim could not have been set up in that suit. as trover is founded on tort, and the counter-claim is founded on contract. (1 Ch. Pl., 476, 489-499.) Actions in form ex contractu cannot be joined with those ex delicto. (1 Ch. Pl., 134, 138.) Trover and assumpsit cannot be joined. ( Id. 199, n. 4.) It should be borne in mind that the trover suit was brought against the company as a trespasser regardless of any contract. Hence from the nature of the former action the counter-claim cannot be barred. (2 Pars. Cont., 238; Campbell vs. Butts. 3 Comst., 173; Wadleigh vs. Veasie, 3 Sumn., 165; 2 Sm. Lead. Cas., 783-6; Doty vs. Brown, 4 N. Y., 71.)

Even could the counter-claim have been set up as matter of law, the question here is, whether in fact it was set up. If not, judgment in that case cannot bar its recovery now. (2 Pars. Cont., 235; 15 N. H., 9; 20 How. State Tr., 538; 3 Wood & M., 236; 3 Comst., 173; Emp. Transp. Co. vs. Boggiano, 52 Mo., 294.)

The plaintiff's position in regard to this counter-claim is virtually this-- that because plaintiff was convicted in trover of converting a part of the property transported, therefore this defendant has no claim under the contract, and plaintiff, by having done the wrong, as to the conversion, can take advantage of that wrong to evade all responsibility to defendant for the breach of contract.

The action in trover satisfied plaintiff for the act of converting the rice at its cost value. The counter-claim propounds indemnity to defendant for plaintiff's failure to deliver the goods here in St. Louis, in pursuance of the plaintiff's contract as carrier. If defendant should set up a claim for the rice itself, he would be asking something already awarded to him in the former litigation. But the contract had a value. The contract, if valid and enforcible, entitles Traube to have that rice put down at St. Louis, or, to such damages as necessarily befall defendant in consequence of this breach of the contract, in failing to deliver the rice in St. Louis. The plaintiff was not only guilty of conversion. Subsidiary to this it broke its undertaking to deliver the goods here. And the referee estimates this damage at $665.00 yet denies it to Traube. For this Traube has had no allowance, and is surely entitled to it when suit is brought to enforce that very contract against him.

The plaintiff admits that it carried this merchandise under the written contract. How then can it recover upon a quantum meruit? Why have a contract at all, if it can be disregarded and abandoned at pleasure.

Counsel proceeded to comment at length upon Smith vs. Way, 9 Allen, 473; Eastman vs. Cooper, 15 Pick., 276; Norton vs. Dougherty, 3 Gray, 372; Burnett vs. Smith, 4 Gray, 50; Warren vs. Cummings, 6 Cush., 103; as establishing the contrary of the doctrine contended for by appellant.

A. M. Thayer, for Respondent.

I. Appellant's defense is a naked attempt to try, in the shape of an off-set, a matter which has once been tried and settled in another jurisdiction.

A judgment may be pleaded in bar to a second action, where the judgment was rendered in a suit between the same parties and relates to the same subject matter. (Poorman vs. Mitchell, 48 Mo., 45; Offutt vs. John, 8 Mo., 120.)

The failure of the defendant in the former action, as a common carrier, to transport and deliver the rice, was the subject matter in controversy in that action, and is that of the counter-claim in this suit.

It is immaterial that the former suit was in trover, rather than case or assumpsit; for in either action the value of the property lost would have been the measure of damages. And there is no doubt that appellant might have recovered the full amount of his damages in the former action. If he did not, and saw fit to accept a less amount, without appeal, he is concluded.

NAPTON, Judge, delivered the opinion of the court.

This suit was to recover a freight bill amounting to $411.67, for transportation of certain goods from New York to St. Louis, at the request of defendant.

The answer sets up a counter-claim for $1000 damages for failing to deliver 58 tierces of rice, a portion of the cargo ordered by defendant. The reply admitted the failure to deliver the 58 tierces of rice; but set up a judgment recovered by Traube in the Circuit Court, U. S., against the plaintiff, for $2616, the value of said rice, and claimed the judgment which was paid was an adjudication of that matter, which barred the defendant from his counter-claim.

There was an agreed statement of facts, which was as follows:

1. It is admitted that the plaintiff transported from New York to St. Louis, and there delivered to defendant the various quantities of merchandise mentioned in the petition.

2. It is admitted that the defendant accepted said merchandise, and the freight on the same amounted to $411.67, at the rate agreed upon between the parties, and that said freight on the merchandise delivered and mentioned in the petition, has never been paid.

3. It is further admitted, that at the time plaintiff received the merchandise mentioned in the petition from defendant, it also received fifty-two tierces of rice from the same firm, and issued the bill of lading filed with the answer, whereby it undertook to transport the merchandise mentioned in the petition and said tierces of rice from New York to St. Louis, and there deliver the same to defendant.

4. It is admitted that the plaintiff never delivered said rice to defendant at St. Louis, but in fact transported it to Indianapolis, and at the instance of certain New York merchants, carried it back to New York and delivered it to said merchants, who claimed to own it, and took from said merchants a bond of indemnity against all claims for damages that might arise in consequence of plaintiff's action; that in consequence thereof the defendant wholly lost said rice.

5. It is admitted defendant, prior to the commencement of this suit, brought an action of trover in the U. S. Circuit Court for the district of Missouri, against plaintiff for the conversion of said rice; that the plaintiff herein appeared and defended said action, and after trial had in due form of law, defendant recovered judgment against plaintiff in this action in the sum of $2616.74 for damages, at the April term, 1872.

6. It is further admitted, that in said action of trover, the jury, under instructions from the court to assess damages at the value of said rice at the time of conversion, in fact gave judgment for the value of said rice at the city of New York, and that said judgment was not appealed from by either party to said action, and had been paid in full to defendant by said parties, who gave plaintiff herein the bond of indemnity as aforesaid, prior to the commencement of this suit. It was further agreed to refer the case to Geo. B. Kellogg, Esq., as referee.

The referee found the facts to be, that defendant was indebted in the sum claimed in the petition for the transportation of the merchandise delivered, and that the fifty-eight tierces of rice not delivered were worth in New York about two cents per pound less than they were worth in St. Louis, at the date of the delivery of the other merchandise forwarded, and therefore, that the defendant was entitled to $665 for the damage he had sustained by reason of the non-delivery of the rice at St. Louis; but was further of opinion that, inasmuch as defendant had only recovered the New York price of the rice in his action of trover in the Circuit Court of the U. S., and that judgment was not appealed from and had been paid, it was a bar to the counter-claim.

This opinion and conclusion of the referee was, on consideration of exceptions to it, confirmed by the Circuit Court, and subsequently at the General Term. And the only question presented by the record in this case, is whether this conclusion as to the plea of former recovery as a bar is on...