Kane against Fisher, 2 Watts 246

The opinion of the Court was delivered by Kennedy, J. The first, second, fifth and sixth reasons relate exclusively to those matters which were all given in evidence, and made the ground of defence by the defendant, in the first action of covenant against him, instituted in 1808. They were not only all passed upon and decided in that action by the court and jury, but the defendant gained a very important advantage on account of them.

A. deduction of upwards of 1400 dollars was made by the jury from the plaintiff’s demand, and from what would otherwise have been clearly given him, as his due, by the jury, had not those things been set up by the defendant as a defence.

He having got all that the jury thought he had a right to claim, under the particular circumstances of the case, must-be considered as having obtained a complete compensation for and on account of the incumbrance upon the land, and defect of title on the part of Kane, as well as any other delinquency in not having fulfilled and performed punctually all and singular those things contained in the articles of agreement upon his part to be performed. Then is it reasonable that the defendant should be permitted to avail himself of the same defence a second time, and to obtain compensation again for the same injury?

Surely not. It is totally immaterial, where an incumbrance exists upon real estate at the time of the sale thereof, whether the vendee of it obtains compensation for, or indemnity against it, as plaintiff, in an action brought by him against the vendor for that purpose, or in an action brought against him by the vendor for the purchase money, by setting it up as a defence, and obtaining an adequate deduction from the purchase money sought to be recovered from him, according to the estimate which the jury may think proper to make of it.

And whatever result shall attend his attempt, either as a plaintiff or a defendant, to obtain compensation for such injury, he will be bound and concluded by it. He cannot have a second action for the same cause, nor yet make it the ground of a second defence in a subsequent action, after a recovery had against him in the first; nor can he, after having obtained reparation in either form, or even after having taken his chance for it, bring and sustain a suit for it, or make it the subject of a' defence afterwards.

And the effect in law would be precisely the same, after having submitted the matter to a jury once, whether he succeeded in obtaining any thing on account of it or not. He will be concluded by the decision until set aside or reversed; and as long as it remains in force and unreversed, it will be a good bar to any future attempt to recover reparation or indemnity for the same cause. All the authorities cited by the counsel for the defendant to support his plea of a former recovery, are full to this effect. I will, however, only refer to Curtis v. Groat, 6 Johns. Rep. 168 ; Jones v. Scriven, 8 Johns. Rep. 453.

The third reason is, that the Chief Justice misdirected the jury in advising them that the recovery of the plaintiff in the former action was no bar to the recovery of the plaintiffs in this case. It is certainly true that the instalment of the purchase money for which this action is brought, was likewise included in the plaintiff’s declaration in the former action, and the non payment of it assigned as a breach, as well as all the preceding instalments, excepting the first, which was paid at the time of sealing and delivering the articles of agreement.

But then it appears from the face of the record of the suit that it was not due or payable at the time the suit was instituted, and that the plaintiff, therefore, had no right to demand it in that action. I am not satisfied but that, in the absence of all testimony to the contrary, we ought to presume that this last instalment was excluded by the jury from their consideration, in making their verdict in the former action, as it was not payable at the time of instituting it.

If a plaintiff, in an action for defamation, join words, in the same count of the declaration, which are not actionable, with those that are; and the jury give damages for a certain amount, generally in favour of the plaintiff, without saying for what words, and judgment of the court be rendered on the verdict: it will be presumed that the damages were given entirely on account of the actionable words; though it would be otherwise where they are set forth in different counts. In Crouse v.

Miller, 10 Serg. & Rawle 155, where a suit was brought in November 1818, and one count in the declaration averred, that in consideration that the plaintiff, at the special instance, &c. of the defendants, agreed to suffer them to occupy certain premises for the term of four years, commencing in August 1816, and to board one of the defendants; that plaintiff did suffer them to occupy the same for the term of four years, and boarded one of the defendants, according to the term of the said agreement, and a general verdict was given for the plaintiff: it was held by this court, that though on demurrer it would have been bad, yet after verdict it would not be intended that the jury gave damages on account of the time laid in the declaration subsequent to the inception of the suit, and therefore was good.

So in the case of Yaldon v. Hubburb, Com. Rep. 231, the same principle is fully sustained, and held that it was impossible that the jury could be presumed to have given damages for the time charged in the declaration after bringing the suit. But the case before us is clear of all difficulty on this score; for the jury, in express terms, by their verdict, have repelled all presumption of their having given damages for or on account of any part of the plaintiff’s claim which became payable after the institution of the suit.

Their language is, “ we find 1875 dollars 60 cents due to the plaintiff at the institution of the suit.” None of the cases referred to by the defendant’s counsel seem to meet .or come up to the present one fully. It appears to me, however, that the case of Bull v. Hopkins, 7 Johns. 22, decides the very principle involved in this.

There the defendant pleaded a former action and trial between him and the plaintiff, in which the plaintiff set off his demand against that of the defendant wherein he was then plaintiff; yet notwithstanding the plaintiff had actually brought forward the same demand, which he was then seeking to recover in the second action, and urged before the jury to have it set off in the former action against him by the defendant in the second, he was permitted to show that his demand was not then actually due and that the jury for that reason rejected it; and accordingly, upon showing this, he succeeded in his suit.

Now although the plaintiffs here sought to recover the same money in the former action which they sued for in this, yet as the defendant then resisted it upon the ground that it was not payable, as well as on other grounds, and obtained a direction from the court to the jury that they could not allow it to the plaintiff because it was not payable at the commencement of the suit, and the jury accordingly rejected it on that ground, it would be highly unjust to hold that the plaintiffs, by their recovery in that action of other moneys, were thereby barred from reco-. vering, in the present action, that which was rejected there because it had not become payable before the institution of the suit.

I am also satisfied that there is no technical rule of law, making the recovery in the former action a bar to the present. If the defendant had not objected to it on the ground that it was not payable when the suit was brought, and the jury had not disallowed it for that reason; then, upon that being shown, it would doubtless be otherwise. King v. Fuller, 3 Carnes’s Rep. 152.

The fourlh reason is, that the jury were advised by the Chief Justice not to allow the defendant’s claim for moneys and expenses disbursed and incurred by him in defending the land against the claim of. the widow Kane, to be defalked from the plaintiff’s claim. In this I can perceive no error.

The claim of the widow Kane ultimately proved to be unlawful; and it is only lawful claims to the land sold by Kane to the defendant, that Kane or those standing in his shoes were bound to defend against: consequently the defendant had no right to call upon Kane, or those representing him, to defend against the claim, nor yet to be reimbursed out of Kane’s estate, the costs and expenses to which he may have been put in defending against the widow Kane’s claim.

The seventh reason is, that the plaintiffs not having shown, on the trial of the cause, by proper evidence, that they were the assignees of John Kane, duly appointed under the insolvent acts, that the Chief Justice ought, therefore, to have directed the jury that the plaintiffs were not entitled to recover, and could not sustain this action.

It is a sufficient answer to this objection, that the pleadings have not put the fact, whether the plaintiffs are the assignees of John Kane or not, in issue; on the contrary, that they are such, appears, by the pleas of the defendant, to be admitted, and therefore it was unnecessary for the plaintiffs, on the trial of the cause, to give evidence of it.

The eighth reason is, that more than twenty years having elapsed from the time the money in question became payable, according to the terms of the contrast, and the time of commencing this action for the recovery of it; that the jury ought to have presumed it paid, and that the Chief Justice ought to have advised them to that effect.

Here it is necessary to observe that on the 28th of January 1823, the plaintiffs in the first suit filed a new declaration, embracing the money in question, and making a demand of it, which was at least two months before the twenty years had run; now although this demand was not made in such a way as to render it effectual, yet I consider it sufficient to prevent the presumption of payment from arising through mere lapse of time.

Beside, if the claim in this case had not been made at all in the former suit, I would still consider the pendency of that suit, brought to recover prior instalments upon the same articles of agreement the payment of which was resisted by the defendant upon the ground that he had not received a good title clear of incumbrances for the property purchased by him under the articles, sufficient to repel the presumption of payment of the subsequent instalment not then payable, as long as the former suit remained pending and undetermined.

There is nothing in the ninth, and only remaining reason, which is, that the verdict is against law and the evidence given in the. cause; for it appears to be in conformity to both. The judgment is affirmed.