Citation Numbers: 57 Misc. 403, 103 N.Y.S. 947
Judges: Mills
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 1/13/2023
This is an action brought by the plaintiff against the defendant to recover damages for an alleged breach by the defendant of a contract, by which the defendant was to sell and deliver to the plaintiff crushed trap rock of a certain size to be used in road making. The answer, among other things, pleads as a defence in bar a former judgment and recovery by the defendant here, as plaintiff, against the plaintiff here as defendant there, in an action in this court, tried in Rockland county, to recover the purchase price of said stone according to the contract of sale and delivery between the parties.
Upon the trial here the plaintiff gave evidence proving the contract for the sale and delivery of the stone of the specified size for the specified purchase price; and that, upon delivery and receipt of the stone, it was found to'be sub
The plaintiff having then rested, the defendant offered in evidence the judgment roll in the former action. Each party then moved that the court direct a verdict in his or its favor, and both stipulated that the decision of such motion should be reserved, briefs to be submitted and the motions thereafter determined as of the date when made. Briefs have now been submitted and examined.
The question to be determined, therefore, is whether or not the judgment in the former action is a bar to the plaintiff’s recovery in this action. In the determination of this question the certain test is: Did the judgment in that former action determine in favor of the defendant here a fact there material, which in this action must be determined in this plaintiff’s favor in order that he may here recover ?
In the former action it was obviously necessary for the plaintiff there, the defendant here, to allege and prove performance of the contract to deliver stone of the specified quality, and that the purchase price still remained due and unpaid, which latter fact involved the finding that the contract fixing the price remained unmodified. The judgment in the former' action therefore determined, necessarily, that the defendant here did perform the contract and did deliver stone of the specified quality, and that the purchase price, remained due. In order to recover here this plaintiff must prove, as he has undertaken to do, that the defendant did not perform the contract in that the stone delivered was not of the specified quality, i: e., size. Such failure of perform
I do not see how it is possible for the plaintiff here to have judgment, except upon one or more findings of fact directly contrary to certain findings of fact which were absolutely necessary to support the former judgment and which, therefore, are here necessarily to he held as having been found there in this defendant’s favor.
The motion of defendant for a direction of a verdict in its favor is therefore granted, and that of the plaintiff denied.