Snow vs. Prescott, 12 N.H. 535

Gilchrist. J. The case of Tilton vs. Gordon, 1 N. H. Rep. 33, presents a state of facts similar to that in the case before us ; and if the judgment there were correct, it should govern the decision of this case. The soundness of that judgment, however, has been often questioned at the bar, and by the court also, in the case of Fuller vs. Little, 7 N. H. Rep. 535. It was pronounced by Mr. Justice Bell, and in the case of Farmer vs. Stewart, 2 N. H. Rep. 101, was said by Mr.

Justice Woodbury to be “supported by principle as well as the authorities there collected.” From the opinions of two so eminent lawyers, we should not hastily dissent, but a careful consideration of the case has led us to a different result. In that case, Tilton delivered Gordon a yoke of oxen, in part payment of a note, and Gordon promised to indorse their price on the note. This be neglected to do, and brought an action on the note, in which he recovered judgment by default, for the sum for which the note was given.

Tilton then brought an action to recover the price of the oxen, stating these facts in his declaration. The court held that if the action could be supported at all, it must be on the ground that Gordon recovered more than was due him in the action on the note ; and that he could not recover on this ground, because a judgment recovered in a court of competent jurisdiction, while unreversed, is conclusive as to the subject matter of it. to every intent and purpose, and cannot be reexamined in a new action founded on evidence which would have constituted a defence to the original suit.

The general principle thus enunciated by the court may be entirely correct, and it may be admitted to be in accordance with the authorities. Still, the question arises, whether the plaintiff, in order to make out his case, must necessarily have reexamined the merits of the original judgment. If this were unnecessary, the principle on which the judgment was rendered, although sound in the abstract, was incorrectly applied to the circumstances of the case.

If the plaintiff could not have recovered without enquiring into the merits of the case, which had been settled by the judgment, then the decision was right, and the plaintiff in the action before us cannot recover. One of the cases cited by the court, as an authority for the position before stated, is Phillips vs. Hunter, 2 H. Bl. 402. Lord Ch. Jus. Eyre, in the course of his judgment, puts this case: “ A man recovers a debt before paid; the receipt is mislaid, and afterwards found; the receipt disproves the whole ground of the recovery, and yet this action (for money had and received.) was never thought to lie.

In this case, the money paid on the receipt might, perhaps, be got back, because the party, by bringing the action, disaffirms the application of the money received, to the payment of the debt.” The latter part of this quotation refers to the same ground on which the case of Tilton vs. Gordon was questioned in Fuller vs. Little, and to which we shall presently advert. But the plaintiff might have been permitted to recover without a violation of any part of the' doctrine of the court.

The substance of his case was, that he had delivered the oxen to the defendant in part payment of the note ; that the defendant agreed to indorse their price upon the note; that he failed to do so, and thereby did not receive them as payment, and that consequently he was then bound to pay him their price. In this view of the case, it was perfectly immaterial whether a judgment had or had not been rendered in a suit on the note. The plaintiff’s cause of action, and right to recover the price, depended, not on the rendition of the judgment, but upon the breach of the defendant’s contract.

The note was accessible to the parties, as evidence of this collateral matter, even after the judgment ; and, on being produced, an inspection of it would have shown that the defendant’s contract had been broken. But no evidence need have been given of the judgment; and, not only would no enquiry have been necessary into its merits, but it would have been immaterial whether such a judgment existed. But the plaintiff might have admitted that a judgment had been recovered on the note. His cause of action arose from something aside from, and independent of, the judgment.

Nor was the judgment for too large a sum, and Gordon recovered no more than upon the facts then existing he was entitled to recover. By the default, Tilton admitted that the sum for which the note was given was due upon the note. But it did not by any means follow that Gordon might not have made a contract in relation to a payment of a part of the sum due, for a breach of which he might have been answerable to Tilton in another suit, and which, on account of its collateral character, would not involve the merits of the judgment.

The substantial matter, on which Tilton’s right to recover depended, would not necessarily have been a defence to a suit on the note. Because a state of facts might have been relied on as a defence, it does not follow that a substantive cause of action might not have been based upon the same facts.

His right of action arose, strictly speaking, not from the fact that he had made a payment on the note, which Gordon refused to deduct from the sum due, but because Gordon, having once agreed to receive the oxen in payment, had admitted that they were not to be considered as payment, by refusing to indorse their price upon the note, and had thus rendered himself liable for their value. We have endeavored to explain the reasons why, in our opinion, the merits of the judgment upon the note were not involved in the suit to recover the price of the oxen.

If these be sound, it will follow that the ground on which the judgment was placed, was untenable. But there is another position, entitling the plaintiff to recover, which, perhaps, is but an extension of the views we have taken, and which is stated in the case of Fuller vs. Little, 7 N. H. Rep. 535, by Mr. Justice Parker.

It is substantially this : That a contract may be rescinded without proof of an express agreement to rescind it; that one of the parties may sometimes consider the act of the other as a rescission ; and that when Gordon took his judgment for the sum mentioned in the note, without deduction, Tilton might elect to consider that as a rescission of the agreement to receive the oxen in part payment. Gordon would then have owed Tilton the price of the oxen, which might have been recovered without enquir-ing into the merits of the judgment.

We are, therefore, of opinion that the principle stated by the court in Tilton vs. Gordon, as the foundation of their judgment, was incorrectly applied to the facts of that case, and that the plaintiff was entitled to recover. Consequently, the plaintiff in this case is entitled to recover. He sold and delivered the plough and anvil to the defendant, who agreed to indorse their price upon the note. This agreement he failed to perform, and the plaintiff may consider this failure as a rescission of the agreement. The defendant, then, has received property of the plaintiff for which he has not paid.

He cannot avail himself of his omission to make the indorsement, as a de-fence to this suit, and the plaintiff may now recover the price of the property, in this action. Judgment on the verdict.