McAlister v. Hamilton

It seems to me that there was error in sustaining the plea of res judicata. That plea is based upon the alleged judgment rendered by this Court in a previous case between these same parties, relating to the same subject matter, in which the defendant herein brought an action against the plaintiff herein to rescind a written agreement entered into by said parties for the sale by McAlister to Hamilton of all the timber trees of certain special dimensions growing on the land of McAlister, known as the Gibson tract, for the sum of $1,000, to be secured by three notes of Hamilton, payable to McAlister at different dates; and also to cancel said notes, and to require McAlister to refund to Hamilton the money paid by him to McAlister on the note first becoming payable, with interest from the date of such payment. See the case of Hamilton v. McAlister, 49 S.C. 230. That action was based upon the ground that said written agreement was entered into under a mutual mistake as to the boundaries of said tract of land. The Circuit Judge who heard that case (his Honor, Judge Benet,) held that the agreement should be rescinded, the notes cancelled, and the amount paid on the first note by Hamilton should be refunded, and rendered judgment accordingly. From that judgment McAlister appealed to this Court, when this Court was equally divided — two of the Justices holding that the Circuit Judge had gone too far in rescinding the entire agreement and cancelling the notes, and were of opinion that the judgment should be modified in accordance with the views stated in the opinion of Mr. Justice Pope and concurred in by Mr. Justice Jones, while the other two Justices dissented — holding that the judgment of the Circuit Court should be reversed and the complaint dismissed. From this it would seem that no judgment was ever rendered in the former case between these parties, and hence there would be no room for the plea of res judicata.

But, as I infer from what is stated in the complaint in this case, all parties seem to have treated the views presented by Mr. Justice Pope, and the conclusion which he reached in the former case, concurred in by Mr. Justice Jones, as the judgment of this Court in that case; and while I do not agree to the correctness of that view, yet I am not disposed to interfere with this action of the parties. The only points upon which the entire Court was agreed in the former case, were that Judge Benet had erred in rendering judgment that the written agreement should be rescinded, the notes given in conformity to its terms cancelled, and the money paid by Hamilton to McAlister should be refunded. Assuming, however, as the parties seem to have done, that the judgment of this Court in the former case was in accordance with the view presented by Mr. Justice Pope in his opinion in that case, still I think it afforded no basis for a plea of res judicata, for the reason that the question presented in the present case was not and could not,at that time, have been adjudicated in the former case. The only object of the calculation, or estimate, made by Mr. Justice Pope in his opinion, was to ascertain what was the number and value of trees which Hamilton lost by reason of the claim of Mrs. Biemann to a part of the land upon which Hamilton had bought all of the trees of the specified dimensions, in order to determine what credit Hamilton should be allowed on the contract price of the trees which he bought, or rather supposed he was buying. In other words, the only question made in the former case was what credit Hamilton should have on his contract with McAlister on account of the loss of the trees taken by Mrs. Biemann; and there was not and could not have then been any question raised as to the number or value of the trees which Hamilton was to get from McAlister. The question in the present case is whether McAlister is entitled to claim from Hamilton pay for all the trees cut by him on the land of McAlister at a price which each tree was estimated to be worth in the former case, when the sole object was to ascertain the amount of credit to which Hamilton was entitled by reason of the trees which he lost through the claim of Mrs. Biemann. That is a totally different question from that raised and determined in the former case, and is not concluded by the plea of res judicata. But aside from the defense set up by the plea of res judicata, it seems to me very clear that the plaintiff is not entitled to recover in this case, and that there was no error in dismissing the complaint. The plaintiff having contracted to sell all of the trees of certain specified dimensions, at a lump sum, on his Gibson tract of land, he is not entitled to recover anything more than the contract price, even though the number of such trees should turn out to be much greater than was estimated. The fact that the plaintiff may have sustained some loss by reason of an erroneous estimate made in the former case, as seems to be the fact, if the allegations of the complaint in the present case be true, cannot affect the present inquiry. I concur, therefore, in the result.