Chamberlain v. Carlisle a., 26 N.H. 540

Eastman, J. The pleadings in this case were irregular. The plea of usury, tendering the oath of 'the defendants, should have been signed by them; and where a defendant pleads usury, under the statute, with a verification by his oath, neither party can, in a subsequent pleading, change the course of the trial by tendering an issue to the jury. Tappan v. Sargent & a., 13 N. H. Rep. 429. But there is no controversy between the parties as to the-pleadings. The only question presented upon the case is, whether the ruling of the court in excluding as evidence the record upon the former suit was correct.

It appears from the case that a former suit was had between this plaintiff and William T. Carlisle and Joyslin, two of the present defendants, upon a note for $450, which was commenced upon the same day with the present suit, was tried at the May term of the common pleas, 1851, and a verdict and judgment therein duly rendered for the plaintiff. It was the record of that judgment that was offered in evidence in this suit. From the same plea we gather the following facts, out of which the $450 note and the note now in suit grew.

On the 2d of June, 1834, Thomas Carlisle hired of the plaintiff $300, and gave him his note therefor for that sum, payable in one year, with interest, and procured Royal Joyslin and John Wilson to sign the note with him as sureties; and at the same time made a contract to pay the plaintiff $18 a year as usury. This note was not taken up till June, 1838, until which time the annual usury was paid according to the contract.

On the 10th of June, 1835, Thomas Carlisle hired of the plaintiff another sum of $200, and procured Sampson & Perkins to sign a note with him therefor to the plaintiff, payable in one year, with interest; and also agreed to pay $12 a year as usury upon this sum. This note also remained unsatisfied till June, 1838, and the annual usury of $12 was paid by Carlisle upon it. These two notes were thus brought down to June, 1838, at w'hich time they were taken up, by giving a new note to the plaintiff for $500,.dated June 10, 1838, payable in one year, with interest.

This note was signed by Thomas Car-lisle, and by William T. Carlisle, Royal Joyslin and John Wilson as sureties. At the same time, it was agreed by Thomas Carlisle that $30 a year should be paid as usury upon this note; and that amount was paid up to June, 1841, when an agreement was made to give day of payment till March 10th, 1842, for $27,50 usury, which was also paid. On the 10th of March, 1842, the $500 note was taken up by the payment of • $50 cash, and the giving a new note for $450, signed by the same persons, Thomas Carlisle, William T.

Carlisle, Royal Joyslin and John Wilson; and an agreement was then made between Thomas Carlisle and the plaintiff to pay $27 a year as usury. That sum was paid at the time of giving the note, and also on the 10th of March, 1843, for the delay till March, 1844. On the 10th of March, 1844, an agreement was made between the plaintiff and Thomas Carlisle to indorse $375 on the $450 note, and to delay payment of the $375 for one year, forthesum of $25 usury; and to secure the $375 and the $25, Thomas Carlisle procured an accommodation-note, running to himself, signed by William T.

Carlisle, Royal Joyslin and John Dewey, the defendants in this suit, for $400, and indorsed the same over to the plaintiff. This $400 note is the one now in suit, and the $450 note is the one upon W'hich the other suit was founded. In the suit upon the $450 note, which wTas between this plaintiff and William T. Carlisle and Royal Joyslin, two of the present defendants, two pleas were filed; first, the general issue, and second, usury. The present suit upon the $400 note is against William T.

Carlisle, Royal Joyslin and John Dewey, and the pleas are the same as in the other suit. ■ Now it is contended by the plaintiff that the record of the verdict and judgment in the other suit should have been admitted as evidence for the plaintiff, as settling the question upon the plea of usury in this suit; that the defendants, having taken their chance of a verdict on the question of usury in that suit, cannot set up the same matter in this.

But there are two substantial reasons why the ruling of the court in excluding the evidence should be sustained.' In the first place, the issue to be tried here, and upon which-the evidence was offered, is upon the question of usury, while the verdict found there, was not upon the plea of usury, but upon the general issue. It is true, the case-finds that the trial was upon both issues, but the verdict was rendered upon one only.

What disposition was made of the other does not appear: the case only shows that by the record there was no finding upon that issue, and the point in issue now was not settled upon that trial and by-that judgment. - In the next place, this suit is upon a different contract and against different parties. This note was given in March, 1844; that in March, 1842; this for $400; that for $450; and there is manifestly included in this, $25 of usury, which was never included in or made a part of the other.

The $450 note was given directly to the plaintiff, while the one in suit was given to Thomas Carlisle, and by him indorsed to the plaintiff. As between the original parties to the latter, there was certainly no usury in its inception. William T. Carlisle, Joyslin and Dewey gave the note to Thomas Carlisle for his accommodation, and Dewey never signed any of the notes until the one in suit for $400, and for aught that appears, had no connexion with the previous transactions.

It is not necessary to decide whether the record sought to be given in evidence upon the trial, should have been pleaded as an estoppel or not. That may, perhaps, be regarded as still an open question with us. Dame v. Wingate, 12 N. H. Rep. 291; King v. Chase, 15 N. H. Rep. 1. Neither is it necessary to decide whether, under the circumstances of the case, the parties to the record being different, and the notes upon which the two suits are founded different, the record could have been pleaded.

It is unnecessary to decide these questions, because we are of opinion that the record offered was inadmissible in this suit, whether pleaded or not. It is, however, well settled that, if it was competent, and there was no opportunity to plead it, it might be received under the general issue. The record of a former judgment between the same parties, for the same cause of action, is, when introduced as evidence, conclusive in bar of a second suit.

Notwithstanding there are many very respectable authorities which hold a different doctrine, and maintain that when the record is introduced as evidence the jury are at liberty to find the fact as they may choose, yet the question has been repeatedly decided, and we think correctly, in accordance with the view stated by us.

There must, at some time, be an end to litigation upon the same facts; and it has been well remarked that it appears inconsistent that the authority of a res judicata should govern the court, when the matter is referred to them by pleading, but that a jury should be at liberty altogether to disregard it when it is referred to them in evidence. 1 Greenl. Ev. \ 531; Cist v. Zeigler, 16 Serg. & Rawle 282, 285; Shafer v. Stonebreaker, 4 Gill & Johns. 345; Gardner v. Bugbee, 2 Cowen 120; 1 Phil. & Am. on Ev. 512; Burt v. Sternberg, 4 Cowen 559; Marsh v. Pier, 4 Rawle 288; Estill v. Taut, 2 Yerger 467; Dame v.

Wingate, 12 N. H. Rep. 291; King v. Chase, 15 N. H. Rep. 1. The record, .when competent as evidence, binds both parties and privies," all who have a mutual or successive relationship to the same rights; privies in law, privies in blood, and privies in estate ; all who have the right to adduce testimony or cross-examine the witnesses introduced by the other side; all wrho have a right to defend the suit or to control the proceedings, or appeal from the judgment. But all others are strangers, and the judgment is not conclusive upon them.

It is also essential to the operation of the rule that both parties shall be alike concluded by the judgment. Burrill v. West, 2 N. H. Rep. 190; Carver v. Jackson, 4 Peters 85; Wood v. Davis, 7 Cranch 271; Davis v. Wood, 1 Wheat. 6; Case v. Reeve, 14 Johns. 81. And many other authorities might also be cited to the same effect. Again, in order to make the record evidence, it must appear that the matter to be decided is the same as was settled upon the former suit. The points in issue must be the same, and the judgment is conclusive only upon the matter which was directly in issue in the previous action.

By the matter in issue is to be understood that upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings; that which can properly be traversed in pleading. King v. Chase, 15 N. H. Rep. 1. As we give the same effect to the record, when introduced in evidence, that we give to it when pleaded, it follows that it must be strictly between the same parties or their privies, and upon the same matter in issue. Now although Carlisle and Joyslin are defendants in both suits, yet Dewey was neither party nor privy to the other action.

He had no connexion with that contract whatever; and had the judgment been rendered upon the issue of usury, it could not have concluded him from showing the usury in the second note, whatever it may have been. Had he appeared in that suit and claimed the right to control it in any way, or to cross-examine the witnesses of the plaintiff, it would no doubt have been successfully objected to.

Or had there been a verdict in that suit, upon the issue of usury, for the defendants, and the defendants in this suit had undertaken to plead it in bar of the present action, the plaintiff would have replied at once and successfully, that the former suit was upon a different contract and against different parties. That the judgment in the former suit could not be pleaded in this would seem to be clear. Eastman v. Cooper, 15 Pick. 276. In the remarks which we have made, we do not, of course, intend to be understood as holding that judgments between third parties are not at any time admissible.

They may be used by strangers to the record by way of inducement; or to establish collateral facts; or to show that the suit has been determined. They are also admissible to prove that the judgment was actually rendered at such a time and for such an amount; and, in proper cases, to show the amount that a principal has been compelled to pay for the default of his agent, or the amount which a surety has been compelled to pay for the principal debtor. King v. Chase, before cited; 1 Phil. Ev. 332; 1 Greenl. Ev. §§ 527, 538; Tyler v. Elmer, 12 Mass. Rep. 166; Adams v. Balch, 5 Greenl. Rep. 188; 2 Stark. Ev. 190.

Judgment on the verdict.