Besecher v. Flory ( 1896 )

Opinion by

Mr. Justice McCollum,

In this action the plaintiff claimed from the defendant the price of five hundred and ninety-four feet of flagstone, and recovered a judgment for the same. The defense made to the claim was that it had been duly passed upon in a former suit between the parties. To sustain this defense the record of the first suit was presented, and it plainly showed that the claim in the second suit was an item of the claim made in the first. The record in the first suit therefore furnished, on its face, a complete answer to the claim made in the second. This was conceded by the learned court below, but as the plaintiff contended that in the former suit there was no adjudication of the claim on its merits he was allowed to introduce evidence which was considered by the court as sufficient to warrant a conclusion in conformity with his contention. Whether the evidence authorized the conclusion is the real question we have to decide on this appeal. It showed that the only disputed claim on the trial of the first suit was the claim which was successfully asserted on the trial of the case now before us, and that the plaintiff then claimed he sold the flagstones to the defendant, and the defendant claimed he bought them of Place. An intelligent adjudication of these conflicting claims necessarily involved the credibility of the evidence submitted to support them, and the question of the ownership of the flagstones at the time they were sold to the defendant. If the plaintiff was the owner and made the sale as claimed by him, he was entitled to recover the price at which he sold them, but if Place was the owner and made the sale as claimed by the defendant, the latter was not liable to the plaintiff for the price of them, and a correct judgment was entered by the magistrate. This judgment was clearly an adjudication against the claim of the plaintiff for tbe price of the flagstones, and in favor of the claim of the defendant that he bought them of Place. The plaintiff could have withdrawn his claim if there was anything in the evidence which suggested to him or his counsel that it was advisable to do so. But he chose to submit it to the magistrate on the proofs in the case, and these involved a consideration of its merits and of the merits of the opposing claim.

In this as in the former suit the plaintiff’s claim was based on a sale of the flagstones to the defendant, and was for the price of them. The record of the former judgment is on its face a bar to this action. That the magistrate misapprehended the effect of the judgment he entered in the first suit furnished no warrant for the judgment appealed from. It is not necessary to discuss or consider separately the several specifications of error. It is sufficient to say that in our opinion the prima facie bar to this action which the record of the judgment in the first suit affords was not removed or qualified by the evidence in the case.

Judgment reversed.