Windolph v. Lippincott, s. 44, 45.

• Decision Date: 18 May 1931
• Docket Number: Nos. 44, 45.,s. 44, 45.
• Citation: 155 A. 23
• Parties: WINDOLPH et al. v. LIPPINCOTT et al.
• Court: New Jersey Supreme Court

155 A. 23

WINDOLPH et al.

v. LIPPINCOTT et al.

Nos. 44, 45.

Court of Errors and Appeals of New Jersey.

May 18, 1931.

Syllabus by the Court.

A former matter is res adjudicate, where there is identity of the thing sued for, of the cause of action, of the persons and parties, the quality of the persons for whom, and against whom, the claim is made, and the judgment, in the former action, is so in point as to control the issues in the pending one. Syllabus by the Court.

A proper test in determining' whether a prior judgment between the parties, concerning the same matters, is a bar to a subsequent action, is to ascertain whether the same evidence, which is necessary to sustain the second action, would have been sufficient to authorize a recovery in the first; if so, the judgment is a bar. Approving Mershon v. Williams, 63 N. J. Law, 398, 44 A. 211; Hoffmeier et al. v. Trost, 83 N. J. Law, 358, 85 A. 221.

Additional Syllabus by Editorial Staff.

Appeal from Supreme Court, Burlington County.

Action by William H. Windolph and others against William J. Lippincott and others. Judgment for defendants, and plaintiffs appeal.

Reversed.

Philip Wendkos, of Camden, for appellants.

Bleakly, Stockwell & Burling, of Camden, for respondents.

CAMPBELL, J.

These are appeals from judgments in two actions at law in which the plaintiffs below, as purchasers, sought to recover what is known as "down money" or moneys paid on account of an agreed purchase price under certain reputed contracts for the sale of lands. In each case a portion of the consideration was to be paid by means of a mortgage, which under paper writings purporting to be contracts were to be to "the parties of the first part," who were the sellers. This was changed in each case before the sellers executed the papers but after the purchasers had done so. In one case this was done by adding "William J. Lippincott," so that the paper then read that the mortgage was to run to William J. Lippincott, one of the said parties of the first part, and the other paper was changed by adding "Laura Evans," so that it read that the mortgage should run to Laura Evans, one of the parties of the first part.

The purchasers not having taken title under such purported contracts, the vendors brought suits in chancery for specific performance, and, after hearing, the bills of complaint were dismissed.

The decrees of dismissal were consented to by counsel for all the parties, and contained the following recitals: That the vendors had tendered to the vendees an instrument in writing, not executed by the vendors, whereby the vendors agreed to convey to the vendees certain lands, and the vendees had on December 15, 1925, executed such instrument in writing and submitted the same to the vendors for the purpose of having the same executed by them, and accompanied delivery of such written instrument with the payment of the sum called for as the first payment; "and it further appearing to the satisfaction of the court that the aforesaid instrument was altered while in the possession of the complainants (vendors) by the interlineation at their request * * * of the words * * * without notifying the defendants (vendees) herein of complainants' intention to make such alteration and without notifying said defendants after the making of the aforesaid interlineation by the complainants before the complainants had executed the aforesaid contract"; "and it further appearing that the aforesaid interlineation had been made by complainants without the knowledge and consent of the defendants and that said alteration had not been adopted by the defendants, and that the defendants had not been made acquainted with the aforesaid alteration by the complainants after the complainants had made the change, which alteration is in a material part of the contract"; "and the court being of the opinion that the aforesaid instrument in writing, by reason of the aforesaid alteration made in the manner above described, is not the same contract which the defendants, as vendees, signed and is not available to complainants as evidence of the contract made between the parties hereto for the sale and purchase of the lands above described"; and then adjudged and ordered as follows: "Ordered, adjudged and decreed that the aforesaid instrument be declared of no effect and be annulled by reason of the material alteration made by the complainants in the manner above set forth, as means of evidence of a contract made by the parties hereto for the sale and purchase of lands above described." From these decrees appeals were taken to this court, and the decrees were affirmed, 103 N. J. Eq. 275, 143 A. 346.

Subsequently, the suits in question were brought, upon the theory that the purchasers had paid certain moneys, known as "down moneys," to the sellers under a written offer to purchase, which had not been accepted, and that the decrees in chancery dismissing the bills of complaint in the specific performance proceedings and the judgment of this court in affirming such decrees were res adjudicata upon the question that there was no existing, legal contract between the parties.

To the complaints filed in these proceedings at law, the defendants, vendors, filed several answers, which, in part, were stricken out upon motion. However, issues were raised and the causes presented to the jury, by the trial court, upon the theory that, if the alleged contracts in their modified form...