Converse v. Colton , 1865 Pa. LEXIS 107 ( 1865 )

The opinion of the court was delivered, by

Woodward, C. J.

The doctrine of estoppel which both parties invoked,, had no application to the case, for though it is undoubted law, that matters which have been once determined by judicial authority cannot be again drawn into controversy as between the parties and privies to the determination, it is an equally unquestionable fact, that Colton, the defendant here, was neither a party nor privy to the suit which Converse brought against Campbell. That suit was an action of trover and conversion for the same lumber for which this suit was brought,-and the effect of a recovery of damages by the plaintiff was to vest in Campbell the property in the lumber converted, and of course Converse could not recover against Colton for the same lumber for which Campbell had paid him. This, not on the ground of estoppel, but of title. If A. bail his chattel to B., who loses it, and C. finds it, and A. sues C. for it in trover, and recovers its value, the chattel becomes the property of C., and A. cannot assert title to it as against B. or any one else. He has no title to assert, and therefore no right of action.

But although Converse declared against Campbell for all of the lumber, it is alleged, and he offered to show that he recovered for only a very small part of it, because only a very small part of it had come to his, Campbell’s, possession. lor this purpose he offered Donaldson, one of the arbitrators in that suit, and the court rejected him, and this is the first error assigned.

It is said it was not the best evidence of the fact. If, as is alleged, it was proved on that trial, that Campbell kept an accurate account of the logs taken from the boom and sawed at his mill, and that they amounted to not more than six or seven thousand feet, board measure, Colton himself being a witness and fully examined, and the arbitrators made their award on that evidence, giving Converse compensation for only six or seven thousand feet of his lumber, how could these facts be better established than by one of the arbitrators ? It was not in the nature of evidence in chief, else Campbell or his bookkeeper would have been the proper witness. But Colton had already given the award in evidence, and also the declaration in trover on which it was founded, and Donaldson the arbitrator was called to rebut it. Unexplained, that record imported that Converse had recovered against Campbell for one hundred and fifty thousand feet, board measure; explained as proposed, its effect would be limited to six or seven thousand feet. What could be more relevant or direct ? The question was not now as to the quantity actually got by Campbell, but it was as to the quantity recovered for by Converse ; and on that question we see hot that he could offer better evidence than that of the arbitrators who gave him the award. We think Donaldson ought to have been admitted.

It is to be borne in mind that Colton could not use that record by way of estoppel, for he was not a party to it, but it was competent for him to show by the record that Converse had. been paid for his lumber by Campbell, and that his title thereto had vested in Campbell. If, however, it were placed on the law of estoppel, an award or judgment is an estoppel only as to the matters adjudicated or which might have been legally adjudicated. Campbell could not have been legally charged in that action with any more logs than he converted. Evidence, therefore, which tended to define how many he converted was competent even to limit the effect of an estoppel. When the cause of action in which a previous judgment has been rendered was entire, and therefore insusceptible of severance or apportionment, the estoppel will extend to the whole, and it cannot be shown that any part of that which was laid in the narr. was withheld from the jury, but when .the cause of action was severable in its nature, although it will be presumed, primé facie,. that the judgment includes the whole, this presumption may be rebutted by clear evidence that it extends only to a part: Goddard v. Seldon, 7 Conn. Rep. 521; Hess v. Heeble, 4 S. & R. 246; Croft v. Steele, 6 Watts 373; Logan v. Caffrey, 6 Casey 199. The question whether the same matters might have been litigated in both actions must be determined solely by the record: Campbell v. Butts, 3 Comstock 173; but if it shows that they could, then the fact that they were actually decided may, and often must, be proved by extrinsic evidence: Young v. Rummell, 2 Hill 478; Carmony v. Hoover, 5 Barr 305. If such be the law of strict estoppel by matter of record, it seems to follow, a fortiori, that on a mere" question of title the court should have limited the effect of the award to the quantity of lumber actually adjudicated, and in so far as the answers to the points came short of this, there was error. The answers, however, were predicated of the evidence admitted, and would probably have conformed to the rule here stated had Donaldson’s evidence been in. The great error of the trial, therefore, consisted in rejecting that evidence.

When that or equivalent proof shall be admitted, it will be very apparent that Converse will have no right to recover against Colton for so much of his lumber as he recovered for against Campbell, but whether entitled to recover against Colton for the residue of his lost logs, will depend on proofs which are not upon the record, nor proper subjects for discussion at present.

The judgment is reversed, and a venire facias de novo is awarded.