Curtis v. Cisna's Administrators , 1 Ohio 430 ( 1824 )

Opinion of the court, by

Judge Hitchcock :

From the pleadings and evidence in this case it is manifest that the subject matter of the present controversy has been adjudicated by a court of law, in an action commenced by the present defendants against the complainant Wilkins. The object of the former suit was to recover back the consideration money which had been paid for the land, and could have been sustained upon no other principle than that the contract had been abandoned, or put an end to by the parties. In that case full defense was made, and precisely the same evidence exhibited on the part of the defendant as on the present occasion, with the exception of the testimony of a single witness. The testimony of this witness does not materially vary the facts. Having this evidence before them, the jury returned a verdict for the plaintiff, and upon this verdict the court rendered judgment. About two years after the rendition of this judgment, the bill now before the court is filed, the prayer being first to enjoin the judgment at law, and second to enforce a specific performance of the contract.

As before observed, the court of law must hav.e proceeded upon the principle that the contract was at an end. There can be no doubt that the subject was completely within their jurisdiction ; and whether, the decision of the case was or was not correct is not now a subject of inquiry. A court of chancery does not act as a court of errors, to examine or reverse the judgments of a court of law. Upon a case made which comes exclusively within the jurisdiction of a court of chancery, and where a court of law could give no relief, chancery will interfere to enjoin or relieve against a judgment at law. But where the courts of law and of chancery have concurrent jurisdiction, and a party electing to pursue his remedy in one fails, he shall not be permitted, as a general rule, to resort to the othor. It is said, however, in the present case, that the complainants seek to enforce the specific performance of a contract, which could not have been done by a court of law. This *is true; and had the present bill been filed during the pendency of the suit at law, and had no defense been made in that case, this court might, and probably would have given relief. This, however, was not the course pursued. Wilkins had a right to elect, and did elect to make full defense in that court. He preferred to submit his controversy to that jurisdiction, and after a full examination the decision was against him. In this decision he acquiesced for two years or more, and, when threatened with execution, comes into this court to have the matter tried over again. I think he is too late, especially-if, in addition to the other circumstances, we take into consideration the fact that Cisna, the person with whom the contract was originally made, is dead, and that this suit is prosecuted against his personal representative.

The complainants, aware of the difficulty they have to encounter in consequence of the decision at law, undertake to distinguish this from ordinary cases. It seems to be admitted that if Wilkins were the sole complainant before the court, the judgment at law would be conclusive, and the bill must be dismissed. But it is argued that Curtis was not a party in that case, and no person who has not had a day in court, none but parties and privies, can be concluded by a judgment at law or a decree in chancery. It is urged that Curtis alone is the meritorious and interested complainant — that Wilkins has no interest — that ho is joined from necessity, or for the sake of form, in order to obtain the injunction — that inasmuch as Curtis has had no day in court he has now a right to be heard — and that the judgment against Wilkins shall not operate to the disadvantage of him, Curtis. This point has been argued with ability and ingenuity. Many authorities have been cited for the purpose of sustaining the position assumed. I feel no disposition to question the force of these authorities, but the difficulty is that they do not, in my apprehension, apply to the case under consideration. In order to ascertain the strength of this argument, let us for a few moments examine as to the relative situation of these parties, and inquire whether Curtis appears be¿ fore the court in a more favorable point of view than Wilkins. He claims to be, and is, an assignee, not the assignee of Cisna, but of Wilkins. *The contract for the purchase and sale of the land was entered into by Cisna and Wilkins. When this pontraot was reduced to writing, partial payments were made by Cisna to-Wilkins, and it was agreed that at a subsequent period the land should be conveyed, a further payment made, and other acts performed. .Both parties made efforts for the performance of this contract, but whether it were in fact performed by either is not now the subject of inquiry. Previous to the commencement of any suit, and but shortly after the contract was made, Wilkins assigned toSilliman and Curtis his interest in the contract, conveyed to them the land, and at the same time took from them an.obligation to indemnify him against any claim on the part of Cisna. This assignment was made without the assent of Cisna, the assignees having full knowledge of all the facts connected with the whole transaction. Subsequently Silliman transferred his interest to Ourtis. Thus Curtis, by his own act, became interested in the businoss, and, as far as he could, voluntarily placed himself in the situation of Wilkins. By these transactions the rights of Cisna. could not, it is believed, be affected.

It will not be denied, I presume, that had Cisna, on his part, complied with the contract, he might have applied to a court of chancery to enforce a specific performance by the other contracting party; or he might have resorted, at his election, to a court of law for the recovery of damages for the non-performance by his adversary. O.r if the contract was abandoned, he might recover back the amount which he had paid. If he elected to proceed at law, he must, from .necessity, proceed against Wilkins. Curtis was no party to the contract, and at law Cisna would have no claim against him. But were we to adopt the principle contended for by the complainants, Cisna, by the joint act of Curtía and Wilkins, would be deprived of his legal right; he could not avail himself of the remedy at law, but would be driven to-chancery; a doctrine from which such consequences would result, can not be sanctioned.

The complainants urge that Curtis had no day in court; but can this be said with propriety ? True, he was not a party upon the record, but from the bill it appears that he was in fact and in truth-the party in interest. He had undertaken *to indemnify Wilkins against any claim which might be brought against him by Cisna. When the action at law was commenced, he appeared, as is proven by the testimony, and managed the defense* until final judgment, and it is presumed that he will not complain that his rights were sacrificed in consequence of any misconduct or neglect on the part of his assignor.

Upon the whole, I am of opinion that, inasmuch as the subject-matter of this controversy has been settled by the adjudication of a court of competent jurisdiction; was acquiesced in for two-years; and inasmuch as the assignee, under the circumstances of this case, does not come before the court under circumstances any more favorable than those of the assignor, therefore the bill of the-complainants must be dismissed with costs.

Judge Prase concurred. Judge Sherman, having been of counsel, did not sit in this-cause.