Irish American Bank v. Ludlum ( 1894 )

Gilfillan, C. J.

The action is upon two promissory notes, dated, respectively, November 1 and 7, 1889, and signed, “New York Pie Co., E. J. White, Mgr.;” the claim of the plaintiff being that “The New York Pie Co.” was the business style of the defendant, and that E. J. White was his business manager, and authorized to execute promissory notes in his business and business style. Of course, there could be no recovery unless these facts were shown to exist at the dates of the notes.

To establish that these facts existed at those dates, the court below admitted in evidence a judgment in favor of the plaintiff in an action by this plaintiff against this defendant on two promissory notes, dated, respectively, December 2 and 18, 1889, and signed as these notes were, and also admitted evidence of what took place at the trial of that action, including the evidence introduced; and, upon the theory that the determination in that case established conclusively as between these parties that the defendant was the New York Pie Company, and E. J. White his manager, authorized to execute promissory notes in the business on the 1st and 7th of November, it directed a verdict for the plaintiff.

Prima facie, and on the face of the record, the determination in that case settled only that the status alluded to existed at the dates of the notes in that suit, to wit, December 2d and 18th, and that would in this case be immaterial.

No question is made but that where there are two actions between the same parties, and, though the causes of action be different, there are directly involved issues of fact common to both, and those issues are actually litigated and determined in one, the judgment is conclusive on the same issues in the other.

Nor is any question made but that extrinsic evidence may sometimes be admitted to show what the actual contention was in the action first tried, and that there was necessarily involved in the determination something more than is apparent by the record. To illustrate this: Suppose it appeared from the evidence that, in the first of these actions tried, the real contention was whether, by reason of transactions prior to November 1st, the defendant became the New York Pie Company, and E. J. White his manager in its business, and, that being found, the jury had nothing further to do than presume that state of things to continue until December 2d and 18th. In such event, unless the doctrine of res judicata is to be confined within much narrower limits than courts are disposed to restrict it to, the determination would be conclusive in the second action, (this action,) that the state of things so determined existed on November 1st and 7th. Of course, when we resort to evidence outside the record, it must not be left to conjectures that a fact not disclosed by the record was determined. It should appear with certainty that the court or jury must have found the fact in order to reach the verdict or decision; in other words, that the finding of the fact was necessarily involved.

We have carefully examined the evidence in the case first tried, having in mind that it was enough to sustain that judgment that defendant was the New York Pie Company, and White his manager, on the 2d and 18th December; and that it was immaterial whether that status existed before November 1st, except as it might be necessary to find its existence on that day, in order to find it existed December 2d and 18th; and it does not appear that the jury must have found that it existed November 1st and 7th. The evidence on the matter was of acts, transactions, and admissions prior to November 1st, and of acts, transactions, and admissions subsequent to, and having reference to, the situation subsequent to November 7th. The latter evidence would justify the general finding, and v?e cannot say the jury did not make its finding upon it. At any rate, we cannot say they found that the status existed on November 1st.

It was therefore error to hold the judgment to be evidence of the status at the date of the notes here in suit.

Order reversed.

(Opinion published 57 N. W. Rep. 927.)