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Aict with some, at least, of the cases as the consideration for the goods, cited above.

does not bar a new action on the spe

cial promise to pay such debts. “The III. First action defeated because of ex

first suit was not for the same cause istence of substituted obligation.

of action, nor to be supported by the If the ground of the first judgment

same evidence as the second. The is that the original indebtedness has

judgment in the first did not negative been merged in, or extinguished by,

the cause of action relied upon in the the substituted obligation, the judg

second, but affirmed its existence, and ment will not bar a new action on the

pointed the way to a better writ.” substituted obligation. Lemon v. Sig

Harding v. Hale (1854) 2 Gray ourney Sav. Bank (1906) 131 Iowa,

(Mass.) 399. 79, 108 N. W. 104; Harding v. Hale

And a judgment against a depositor (1854) 2 Gray (Mass.) 399; Sullivan

in an action to recover a deposit, dev. Ross (1897) 113 Mich. 311, 71 N. W.

fended on the ground that a certificate 634, 76 N. W. 309; LEONARD V. SCHALL

of deposit was issued which had been (reported herewith) ante, 1166.

paid by turning over to plaintiff notes Thus, a judgment for defendant in

and mortgages in which the deposit an action for services, in which plain

was invested, is not res judicata in a tiff is required to elect whether he will

new action for the amount collected rely upon a quantum meruit or on an

by the bank on such notes, where the express contract, and elects to rely

issue submitted in the first action was on a quantum meruit, does not bar a

whether plaintiff accepted such notes subsequent recovery on an express in lieu of the certificate of deposit. contract, where the court in the first

Lemon v. Sigourney Sav. Bank (1906) action directs the jury to find for de

131 Iowa, 79, 108 N. W. 104. fendant if the services were rendered

If defendant, in a suit on a promisunder an express contract, as alleged

sory note, successfully defends the by defendant, or if plaintiff's assign

action on the theory that he has given or has been paid their reasonable val

plaintiff another note in full payment ue. LEONARD V. SCHALL. The court

and satisfaction of the one in suit, he said that if the cause of action was

cannot, when sued on the second note, the same, the doctrine of estoppel by judgment applied, and plaintiff was

rely on the doctrine of res judicata. barred from maintaining the suit;

And if, in an action for the purchase

price of a horse, defendant admits the that, if the cause of action was not the same, the doctrine of estoppel by ver

purchase, but alleges that he turned dict applied, and plaintiff was bound

over to plaintiff the promissory note by the former judgment only as to

of a third person in full payment of those matters actually litigated and

the debt, and upon this issue defenddetermined in the former suit; that ant recovers judgment, there is nothdefendant was estopped by his motion

ing in the doctrine of res judicata to require plaintiff to elect, from as- which precludes plaintiff from thereserting that the cause of action was after suing and recovering judgment the same; and that as the jury might against defendant for a conversion of have found for defendant in the first such note, or of the proceeds of its colsuit on either of two grounds, and it lection. (Stated incidentally by way did not appear that the issues in the of illustration in the case last cited.) second suit were necessarily deter- In Sullivan v. Ross (1897) 113 Mich. mined by the former judgment, the 311, 76 N. W. 309, plaintiff purchased judgment did not have the effect of an standing timber from defendant, and estoppel by verdict.

subsequently presented a claim against And a judgment for defendant in an defendant's estate for the value of the action for the price of goods sold to lumber from such standing timber, him by plaintiff, rendered on the claiming an oral sale thereof to deground that defendant had promised fendant; a judgment in his favor was to pay plaintiff's debts, and that plain- reversed on the ground that the evitiff had received such special promise dence showed a written contract, un

der which the lumber was to be sold for the benefit of both parties, and the profits divided; thereafter he presented a new claim for an amount claimed to be due him under the written contract. The court first held that he had made a conclusive election of remedies, barring him from prosecuting such claim; but on rehearing reversed this holding, and held that he was not barred by the former judgment, saying: “It is very clear that a dispute exists between the parties as to how much is due, and from whom, if the written contract is to control. It is equally clear that that question has never been passed upon by the court. .. The plaintiff sought to recover upon an oral contract. He had no right of action upon that contract, because the court has said that no such contract existed. Can it be said that defendant shall not be required to account for the proceeds of seven or eight millions of feet of lumber, which it admits it had, because plaintiff claimed that the transaction was evidenced by an oral contract, when the court finds that no such contract existed, but that a written one did."

But a judgment for defendant in an action for personal injuries, in which he pleaded, among other defenses, a compromise agreement between himself and plaintiff, bars an action against defendant on such compromise agreement, where no special issues were submitted, and it cannot be determined that the jury did not reach the conclusion that there had been no valid compromise agreement. This being within the scope of the verdict, the presumption, in a collateral proсеес g, to be in favor of any and every finding with which the verdict may be consistent. Webb v. Houston & T. C. R. Co. (1908) 51 Tex. Civ. App. 230, 111 S. W. 171.

And a judgment dismissing an action for nondelivery of freight, because it appeared that plaintiffs had assigned the cargo, was conclusive against their right to maintain a new action on an allegation that there had been a reassignment to them, such reassignment having been made before

the commencement of the first action. Sweeney v. Frank Waterhouse & Co. (1906) 43 Wash. 613, 86 Pac. 946. The court said: “But no court, we think, has gone so far as to allow a litigant to experiment with a court by trying his case piecemeal. The cause of action which the appellants now urge was available to them at the former trial, the assignments set forth in the complaint having been obtained prior to the commencement of the first action. They should not be allowed to split their causes of action, try their case out on a part of the causes, and, if they fail, commence another action setting forth the other causes." IV. Action to enforce lien after judgment

denying recovery on indebtedness.

A judgment for defendant on the ground that no indebtedness exists, or that it has been discharged, will bar an action to enforce a lien securing the indebtedness (Donovan v. Block (1908) 17 N. D. 406, 117 N. W. 527; Whelan v. Hill (1836) 2 Whart. (Pa.) 118; 23 Cyc. 1194); but not necessarily, if rendered on the ground that the remedy for the enforcement of the personal liability has been lost, or on some ground not going to the merits of the indebtedness (Palmer v. Sanger (1892) 143 Ill. 34, 32 N. E. 390; Stringer v. Gamble (1909) 155 Mich. 295, 30 L.R.A.(N.S.) 815, 118 N. W. 979; Piper v. Hayward (1911) 71 Misc. 41, 127 N. Y. Supp. 240; Douglass v. Blount (1901) Tex. Civ. App. 62 S. W. 429, reversed on another ground in (1902) 95 Tex. 369, 58 L.R.A. 699, 67 S. W. 484, cited and discussed above).

Thus, in Donovan v. Block (N. D.) supra, it was held that plaintiff could not recover the possession of chattels covered by a chattel mortgage, for the purpose of foreclosing the mortgage, where, in another action between the parties, it had been adjudicated that he was not entitled to recover the items of the indebtedness secured by the mortgage. And in Whelan v. Hill (Pa.) supra, it was held that a scire facias under a Mechanic's Lien Law, on a claim filed by a materialman, was barred by a judgment against plaintiff in a personal action against the

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same defendant, adjudging that de

VI. Miscellaneous cases. fendant's personal liability had been

A judgment for defendant in an acdischarged if it ever existed, the court

tion against the mayor and common saying that, if the debt was dis- council of a city to compel the issucharged, the lien which secured it was

ance of warrants for salaries as city also discharged.

officers, though res judicata as to the

duty of the city to issue warrants to V. Substituted obligation as evidence in

the claimants, is not res judicata, first action.

where warrants are nevertheless isWhere a bill of exchange was ac

sued, on the right of the holders to cepted in payment and discharge of compel the territorial loan commisthe original indebtedness from the sioners, by mandamus, to fund the drawer to the drawee, it became new,

warrants by issuing bonds therefor. independent, and substantive cause of

Valley Bank v. Brodie (1904) 9 Ariz. action, and there could be no recovery

17, 76 Pac. 617. It was, however, thereon in an action on the original

claimed that the warrants were issued indebtedness; and hence a judgment

by persons having no authority to rep

resent the city, and they were held for defendant in such action did not

not binding on the city. bar a recovery in an action on the bill,

In an action against an indorser on though the bill was given in evidence

a promissory note, given as security in the first action. Darlington v. Gray

for the performance of an agreement (1840) 5 Whart. (Pa.) 487.

between plaintiff and a third person, In Lindell v. Liggett (1824) 1 Mo. a plea that plaintiff had brought an 432, 14 Am. Dec. 298, it was held that

action against the third person on the a judgment for defendant in an action

agreement and that judgment had on an account stated, in which plain- been rendered against plaintiff on a tiff offered notes in evidence, did not plea of nonassumpsit, was insufficient. bar a new action on the note. The Squire v. Dreenan (1877) 13 Can. L. court said: "The plaintiff produced J. (N. S.) 326. his notes, proved the execution of A judgment for defendant in an acthem, and the indorsements, but failed tion on bills of exchange, to which he to prove that the notes, when due, pleads prescription, is res judicata in were presented to the makers for pay- an action on an account current into ment. And for want of that proof, the which the bills of exchange have been court decided the plaintiff could not carried, resulting in a balance in favor recover; and there was a verdict and of the holder. Johnson v. Forstall judgment against him on both issues. (1848) 3 La. Ann. 446. Responding to

. . The first recovery was had on the contention that the causes of acan account stated. In order to sup- tion were not the same, the court said: port this count by evidence, it must “The debt alleged to be due by the appear that the parties did account defendants is the foundation of the together; and that a balance was plaintiff's claim. The bills in the one found to be due from one to the other. suit, and the account alleged to have Proof of this would be direct proof; been acknowledged in the other, are but in the absence of this the law al- only the evidence of the debt. The inlows of presumptive proof. The point debtedness alleged in both results to be proved here was that they ac- from the nonpayment of the accepted counted together. Lindell offered bills. The cause of action in both is these notes to prove that; but they, clearly identical. The plaintiff . so far from proving that fact to exist, cannot now, by merely changing the proved in connection with some other form of his pleadings, avoid the conevidence that the fact was utterly un- sequences of the first.judgment.” true; and it is said, because this evi- A judgment for defendant, in an acdence was offered, the bar must go to tion of debt against a constable for the evidence, and not to the fact that neglect of duty in connection with an they accounted together."

execution placed in his hands, is a bar to an action on his bond for the same the third person a bond conditioned neglect of duty. Lower Alloways for the sale of such goods and the apCreek v. Moore (1835) 15 N. J. L. 146. plication of the proceeds on plaintiff's

In Farnum v. Kennebec Water Dist. debt. The sale was apparently made (1909) 95 C. C. A. 355, 170 Fed. 173, by defendant, and plaintiff sued him, in affirming a judgment for defendant alleging the delivery of the goods to in an action on quantum meruit by a defendant by C. for sale, and paycontractor who had been prevented ment of the proceeds upon the indebtfrom completing his contract, but who edness due plaintiff. It was held that had been paid the monthly estimates a judgment for defendant was concluprovided for by the contract, the court sive, in a subsequent action brought remarked that the judgment would not by plaintiff against defendant on the be a bar to any suit which plaintiff bond. might bring in the nature of tort for In Ibester v. Ray (1896) 26 Can. S. a breach of the contract, or for any C. 79, affirming (1895) 22 Ont. App. portion of the percentage of the esti- Rep. 12, which reversed in part (1894) mates, retained until completion of the 24 Ont. Rep. 497, an action was contract as provided therein, if there brought on a note made by a firm and was any such portion unpaid.

indorsed by defendant, who alleged In an action by a collector of excise that he indorsed without consideraagainst his deputy on his bond, it was tion, for plaintiff's accommodation. held in Chapman v. Brainard (1796) Judgment was rendered in his favor 2 Root (Conn.) 375, that the action and in favor of plaintiff against the was not barred by a judgment for de

firm. Plaintiff subsequently sued defendant in a former action, brought

fendant on the judgment against the against him by plaintiff on book debt,

firm, and on other notes executed by in which, by agreement of the parties,

the firm, alleging that he held himhe presented all his claims and de

self out as a member of the firm. mands for excise which he might or

Though holding that the former judgcould make by the condition of the bond, the court saying that a judg

ment was not conclusive in his favor, ment in an action of book debt was no

as to his nonliability on the notes sued bar to an action on bond.

on in the second action, the court held In Edwards v. Baker (1888) 99 N. that it was conclusive as to his nonC. 258, 6 S. E. 255, it appeared that,

liability on the note sued on in the plaintiff having attached goods in the former action, and that there could be hands of C. as the goods of his debtor, no recovery against him on the judgthe debtor and defendant executed to ment.

A. Mc. T.

E. L. TREVATHAN, Admr., etc., of Ellen Kierce, Appt.,

V.
FARMERS BANK et al.

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Kentucky Court of Appeals - February 13, 1917. (Kierce's Admr. v. Farmers Bank, 174 Ky. 22, 191 S. W. 644.) Bailment — wrongful delivery - liability.

1. Where bailment is made of an article owned by two persons, either of them may instruct the bailee not to deliver the thing bailed to the other, even though they are husband and wife, and if the bailee agrees to this, and, in violation of this instruction and his agreement, does deliver the thing to one bailor, his liability will be the same as though he delivered it to a stranger.

[See note on this question beginning on page 1196.]

(Kierce's Admr. v. Farmers Bank, 174 Ky. 22, 191 8. W. 644.) - deposit of papers in bank.

care, and is answerable only for gross 2. A bank which permits customers

negligence or bad faith. to place valuable papers in a box un

[See 3 R. C. L. 99, 100.] der its control, kept for the use and

Evidence - gross negligence - deliv. accommodation of customers, occupies

ery of paper to bailor. to persons depositing such papers the

4. A bank which, after accepting relation of bailee without compensa

papers from a man and wife for safe

keeping, and receiving notice from tion.

her not to deliver them to him because [See 3 R. C. L. 94-96.)

he is drinking, may be found guilty of - liability of gratuitous bailee.

gross negligence or bad faith in case 3. A bailee holding a bailment for

it so delivers them to him, so that he

obtains money on them and squanders the sole benefit of the bailor is obli

it. gated only to the exercise of slight [See 3 R. C. L. 99 et seq.]

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APPEAL by plaintiff from a judgment of the Circuit Court for Hickman County in favor of the defendant bank in an action brought to recover the amount alleged to be due on three certain land notes. Reversed.

The facts are stated in the opinion of the court.

Messrs. M. T. Shelbourne and J. M. being that no part of the proceeds Brummal, Jr., for appellant.

of the notes was applied to the payMr. E. T. Bullock for appellees. ment of the insurance debt. Carroll, J., delivered the opinion of

In an amended petition a recovery the court:

was sought upon the ground that the This suit was brought by the ad- proceeds of these notes were deposiministrator of Ellen Kierce to re

ted in the bank to the credit of the cover from the Farmers Bank of Co joint account of Ellen and Pat lumbus, $2,025.79, alleged to be due Kierce, with instructions not to alon account of the principal sum of

low Pat Kierce to check it out; but three land notes of $466.67 each, that the bank permitted the money dated March 17, 1909, together with

so deposited to be withdrawn on interest thereon, executed by George checks bearing the signatures of Higgerson to Ellen and Pat Kierce Ellen and Pat Kierce, which signaas the purchase price of a tract of tures were made, as the bank knew, land owned by Ellen Kierce. The by Pat Kierce alone, and without any suit was based on the ground that authority from Ellen Kierce to sign these three notes, which were really

her name to the checks. owned by Mrs. Kierce, were deposi

On the trial of the case there was ted with the bank, and the cashier a judgment for the bank, and the notified that the notes were deposi- administrator appeals. ted for the express purpose of apply- The basis of the suit is to be found ing the proceeds of their collection

in the following evidence of Mrs. to the payment of a note due by the Trevathan, who was a daughter of Kierces to the Union Central Life

Pat and Ellen Kierce, in which she Insurance Company. That he was

relates a conversation that she says instructed not to allow Pat Kierce to

took place in October, 1909, between withdraw any of the notes, or sell

herself and J. P. De Boe, the cashier or dispose of them in any manner. of the Farmers Bank: That when they were collected the

I went to the Farmers Bank of proceeds were to be applied to the

Columbus; introduced myself to the payment of the insurance debt.

cashier, Mr. J. P. De Boe; told him That, in violation of this agree- that I was Mrs. Trevathan; that I ment and the instructions given to was Mrs. Kierce's daughter, and that him, the cashier permitted Pat my mother had sent me there to see Kierce to withdraw the notes and se- if my father had tried at any time cure the proceeds thereof, the result to collect any money or interest in

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