DocketNumber: No. 9463
Citation Numbers: 72 Cal. 48
Judges: Paterson, Thornton
Filed Date: 2/17/1887
Status: Precedential
Modified Date: 1/12/2023
This action was brought by the plaintiffs to recover from the defendants the value of certain lumber manufactured by them out of trees cut from
In the present case the court below found: —
“ 5. That on the thirty-first day of December, 1881, said defendants paid to; said plaintiffs, in advance, for and on account of timber to be cut under said contract, and taken from said lands of said plaintiffs, the sum of $1,225.88.
“ 6. Which said payment was claimed by the said defendants, and allowed by the court in a certain action
The points of appellants are, first, that the evidence in .relation to the former suit of plaintiffs against defendants was irrelevant and immaterial, and second, that it -was insufficient to justify the sixth finding. The former :suit was between the same parties, upon the same contract, and for the value of lumber manufactured by defendants pursuant to its terms, from November 1, 1882, to .June 1, 1883. The payment in question was made under the contract, in advance, and on December 31, 1881. If it was deducted from the amount due from defendants to plaintiffs for the lumber manufactured by the fformer during the period involved in the former suit,'Surely it ought not to be deducted from the amount due ¡plaintiffs for the lumber manufactured by defendants .during the period involved in the present action, for 'that would be to allow defendants double credit for one ¡payment. Respondents claim that the said paymentfhaving been pleaded in bar pro tanto in the former action., and being there in issue, defendants as well as plaintiffs are bound by the final result thereof, whatever it w.as, and therefore the circumstance that there was no .evidence in the present case that the payment in question was allowed defendants in the former one is not important, although it is stated in the findings of the court below that it was so allowed.
We think, however, that before the defendants can be estopped in this case from claiming the benefit of their plea of payment, it must appear that they have had the benefit of the payment pleaded in the former suit. This
The trial of the former suit occurred September 24 to 26, 1883. .This action was tried September 26, 1883. The record in the former suit, therefore, could not operate as a bar to a recovery in this case. There was no final adjudication at the time this cause was tried.
Upon the testimony given in this case, in connection with the record of the former action, showing that the payments alleged in both were identical, and that the defendants were seeking a double benefit therefor on different installments due under the same contract, the court below would have been authorized to withhold its decision in this case until the merits of the plea of payment in the former action had been finally adjudicated. This was not done, however, but the case went to judgment, and an appeal therefrom has been taken to this court. We see no way of securing the rights of all parties except by a retrial in the court below.
The judgment and order are reversed, and the cause is remanded for a new trial, with instructions to proceed in accordance with the views herein expressed.
Temple, J., Sharpstein, J., McFarland, J., and Mc-Kinstry, J., concurred.