
    JAMES LAWRENCE and others, Plaintiffs and Appellants, v. STEPHEN CABOT and others, Defendants and Respondents.
    f. PLEADINGS, G ON STRUG T1 ON OF, ADMISSION BT.
    
    1. DENIAL CONTAINED IN AN ANSWER.
    (a) Negative pbegnant, a denial amounting to, is an admission of the allegation in reference to which it is made.
    
      (b) Affirmative Allegation accompanying such a denial. 1. The burthen, of proving it rests on the defendant.
    
      (a) The plaintiff may take the admission and leave it to the defendant to establish the avoidance set up by the affirmative allegation.
    
    (c) Instances.
    The above action was brought to recover damages for false representations as to the credit of a third party (B.). The complaint alleged that in a previous action brought in the marine court, by the defendant against the plaintiff to recover broker's commissions on certain sales effected by him (the then plaintiff), for the then defendant, and among them sales to B., the plaintiff, being then defendant, in answer admitted a certain sum to be due; but as to the sales to B., set up certain false representations, made by the plaintiff, in that, being the defendant in this action (the same being set up in that answer substantially as in the complaint in this), that said action was tried, and the only question litigated was the then plaintiff’s right to brokerage on the sales to B.; and the jury gave the then plaintiff a verdict for the amount admitted to be due and no more, disallowing his claim for brokerage on the sales to B. Whereupon judgment was entered pursuant to the verdict; the answer denied that the only question tried in the marine court action, was the indebtedness for brokerage on sales to B., and alleged that the question of plaintiffs’ right to damages for the alleged fraud was also tried, and that the marine court judgment was a bar to this action.
    Before Monell, Ch. J., and Sedgwick, J.
    Decided, April 3, 1876.
    Held,
    1. The denial was a negative pregnant, and admitted the facts alleged in the complaint, which facts established that the only question litigated in the marine court was this defendant’s fraud, and that that question was disposed of against this defendant.
    2. The plaintiff had a right to take the admission without being bound by the affirmative allegation.
    (a) It devolved on defendant to prove his affirmations.
    II. JUDGMENTS. Estoppel.
    1. PAROL EVIDENCE AS TO; when admissible to show whether a certain question was litigated on the trial resulting in the judgment, so as to raise an estoppel.
    
    1. When the record only shows that the questions may have been litigated. <
    
    2. Application.
    In this case
    Held,
    1. Evidence aliunde the judgment roll was admissible to show that the question of fraud involved in this action was litigated and determined in the marine court action.
    2. The stenographer’s minutes established this fact.
    3. That the judgment roll, when offered in conjunction with the stenographer’s minutes, was admissible.
    4. If admitted it would have established plaintiff’s cause of action, and been conclusive on the defendant. Its exclusion was error.
    Appeal from a judgment dismissing the complaint.
    The complaint alleged that the defendants, with in tent to deceive and defraud the plaintiffs, falsely and fraudulently represented to them, that certain persons composing the firm of Osborne, Bullard & Co., were solvent and safe to be trusted : that they were pecuniarily amply responsible for all their debts: . . . That they, the defendants, knew said firm to he good, solvent and safe to be trusted, and amply responsible for and able to pay their debts, and able to pay for such goods as plaintiffs should sell them. That the plaintiffs, relying upon such representations, sold said firm goods, &c., to the amount of twelve and upwards of thousands of dollars, of which over five thousand dollars is unpaid. That the defendants knew their said representations were false; and knew said firm was insolvent, and unable to pay their just debts, &c.
    By reason whereof the plaintiffs have sustained damages.
    There was a general denial by the defendants.
    The plaintiffs, in a supplemental complaint, alleged that subsequent to the commencement of the action, the defendants commenced an action against the plaintiffs in the Marine Court of this city, to recover, among other things, the value of their services as brokers in selling the said goods to Osborne, Bullard & Co. That the plaintiffs in their answer alleged the said false representations of the defendant. That such action was tried, and the only question litigated therein, was, the defendants’ right to brokerage, upon said sales to Osborne, Bullard & Co., which question was determined adversely to the defendants, and judgment was entered thereupon.
    The defendants, in their answer to the supplemental complaint, denied that the only question tried before the justice and jury of the marine court on the trial of the action in said court mentioned in said supplemental complaint was the alleged indebtedness of the plaintiffs to the defendants in this action for the services of the said defendants i procuring the sales to Osborne, Bullard & Company mentioned in the complaint and supplemental comp lint herein :
    And they say, that the question of the right of the plaintiffs herein to damages for the alleged frauds of the defendants herein as set forth in the complaint herein, was also tried on the said trial in the said marine court, and that the verdict and judgment in said action in the marine court is consequently a bar against the further prosecution of this action.
    The plaintiffs offered to read in evidence the judgment roll in the marine court suit. It was objected to and excluded by the court. They also offered to read the stenographer’s minutes of the testimony and proceedings on the trial in the marine court, which was objected to and excluded ; but afterwards was allowed to be read as being the shorthand writer’s minutes of that trial.
    The plaintiffs claimed that the record and proceedings in the action in the marine court, established that the only question litigated in that action was the false representations set up in the plaintiffs’ answer; ami that the judgment in that court upon such question, was binding and conclusive to establish the fraud in this action.
    The court dismissed the complaint and the plain tiffs appealed.
    
      Mathew Daly, attorney and T. R. Coudert, of counsel, for appellants, urged.
    I. The learned justice erred in refusing to admit the judgment roll in evidence. The effect of a judgment, under circumstances like the present, has been the subject of repeated adjudications, and the rule is so wel: settled that discussion seems idle. “The judgment of a court of competent jurisdiction upon a point litigated between the parties is conclusive in all subsequent controversies, when the same matter cernes directly in question ” (Demarest v. Dorg, 32 N. Y. 281; Williams v. Fitzhugh, 44 Barb. 321; White v. Merritt, 7 N. Y. 355; Gates v. Preston, 41 N. Y. 113).
    II. There was error in the exclusion of the parol evidence as to the grounds on which the marine court judgment was rendered. Parol evidence may be received to show the grounds upon which a judgment was rendered'where the grounds of the judgment do not fully appear from the record, provided that the matters alleged to have been passed upon are such as could legally have been given in evidence on the trial, and that the verdict and judgment show that they must necessarily have been considered by the court and jury (Wood v. Jackson, 8 Wendell, 9 ; Stedman v. Patchin, 34 Barb. 218 ; Kerr v. Hays, 35 N. Y. 331; White v. Madison, 26 N. Y. 117; Doty v. Brown, 4 Comst. 71; Wilcox v. Lee, 1 Robt. 355 ; Harris v. Harris, 36 Barb. 94). “The general rule on this subject is well known to be, that a former judgment of the same court, or of a court of concurrent jurisdiction, directly upon the point in issue, is, as a plea in bar or as evidence, conclusive between the same parties, or others claiming under them, upon the same matter directly in question in a subsequent action or proceeding. (Gardner v. Buckbee, 3 Cowen, 120 ; Burt v. Sternburgh, 4 Id. 559 ; Wood v. Jackson, 8 Wend. 9 ; Etheridge v. Osborn, 12 Id. 399 ; Embury v. Conner, 3 Comst. 511 ; Doty v. Brown, 4 Id. 71; Ehle v. Bingham, 7 Barb. 494; Kingsland v. Spalding, 3 Barb. Ch. 341). Such judgment or adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided, as incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action both in respecfc to matters of claim and of defense (Bronen v. Hone, 2 Barb. 586 ; Embury v. Conner, 9 Comst. 511, 522 ; Haire v. Baker, 1 Seld. 357; Davis v. Tallcot, 2 Kern. 184; Hays v. Reese, 34 Barb. 156).” “Insome cases, for example, where the grounds upon which the judgment proceeded do not appear from the record itself, and where, from the record itself, it cannot be determined whether a particular claim or security was involved in the litigation, it is competent to prove the same by parol testimony, provided they be such as might have been given legitimately in evidence under the issue, and must have been directly and necessarily in question as the grounds of the verdict (Wood v. Jackson, 8 Wend. 9 ; Lawrence v. Hunt, 10 Id. 80 ; McKnight v. Dunlop, 4 Barb. 36, 44 ; Young v. Rummell, 2 Hill, 481 ; Dunckel v. Wiles, 1 Kern. 420; Vought v. Winch, 2 B. & Ald. 668 ; Outran v. Morewood, 3 East, 345; Gray v. Purguy, 17 Verm. 419-423.
    III. But were we to waive the benefit of exceptions, the soundness of which is established by an unbroken current of authoritative decisions, there would still remain another fatal objection, to which the attention of this court should be called. The answer to the supplemental complaint admits everything necessary to sustain an action, except the amount of damages. On this point, however, our proof is uncontradicted. A bare inspection of the pleadings must satisfy the court of the sufficiency of this objection.
    
      Edward B. Merrill, attorney, and James C. Carter, of counsel, for respondents, urged :
    I. In determining whether a former judgment is an estoppel, the pleadings in the two suits must first be examined, and if the very same question appears by the pleadings to be raised in both suits, the judgment in the first is conclusive upon the issue in the second. If, however, it only appears by the pleadings that the question at issue in the second suit may have been raised in the first, there is no estoppel, unless the party alleging the estoppel shows by competent evidence aliunde (and he is permitted to resort to such evidence) that it was in fact'raised and certainly decided in the first action. The elaborate notes of the American editors of Smith’s Leading Cases to the “Duchess of Kingston’s Case,” fully sustain the above views. They are familiar law. (Smith’s Leading Cases (Sixth Am. Ed.), 787, et seq. ; Davis v. Talcott, 2 Kern. 184 ; McDonald v. Christie, 43 Barb. 36).
    II. The first step, therefore, in order to ascertain whether the questions in the suit in the marine court were the same as those raised in the present case, is to inspect the pleadings in the two suits. It at once appears that, so far as the pleadings are concerned, the questions were different. (1.) In the suit in the marine court the plaintiffs (the defendants in this) alleged an indebtedness for certain items of brokerage amounting in the aggregate to $151.18. The answer admitted an indebtedness as to certain of the items amounting to $60.09. It then set forth that, as to the brokerage claimed on the sales to Osborne, Bullard & Company, such sales were induced by fraudulent representations on the part of Cabot, Bowles & Co., and “ that the full payment of Osborne, Bullard & Co., was, and is, a condition precedent to any payment of brokerage or commisions to plaintiffs (Cabot, Bowles & Co.) on such sales f and that Osborne, Bullard & Company were insolvent, and a large part of the price of the goods remained unpaid. The answer further set up a counter-claim for goods sold to the amount of twenty-one dollars. The reply denied in substance all the allegations of the answer. Upon these pleadings the following matters of fact were put at issue. First. Whether Henry Lawrence & Sons were indebted to Cabot. Bowles & Co. for the several items of brokerage not admitted by the answer on sales to other parties than Osborne, Bullard & Company. Second. Whether Cabot, Bowles & Company were guilty of the false representations alleged. Third. Whether, by the contract under which Cabot, Bowles & Company acted as brokers in making the sales to Osborne, Bullard & Company, full payment by the latter firm was a condition precedent to the payment of brokerage or commissions to Cabot, Bowles & Company. Fourth. Whether Henry Lawrence & Sons made to Cabot, Bowles & Company the sale set up by the counter-claim in the answer. (2.) We need go no further than the above statement to show that a verdict and judgment on these four issues could not, by any possibility, be an estoppel in the present action. It would be impossible to tell upon what grounds the jury proceeded; and it would even be possible that some of the jury proceeded upon one ground and some upon another.
    III. It follows, from the above, that the judgment roll in the suit in the marine court was properly excluded, and the exception .to such exclusion was not. well taken.
    IV. The effort of the plaintiffs’ counsel to show, by parol evidence, what did not appear on the face of the judgment-roll, namely, that the questions in this suit were adjudged and determined in the suit in the marine court, was wholly unsuccessful. (1.) The opinion of the plaintiffs’ attorney was manifestly inadmissibl , and the rulings of the court repelling this were correct. (2.) Ho evidence was given to show that the stenographer’s minutes were a full and correct report of the testimony and proceedings. In the absence of such proof the court was without knowledge of what such testimony and proceedings were, and no advance was made towards proving with any greater certainty than that afforded by the pleadings themselves, what the real questions litigated and determined were.
    V. Upon inspecting the answer in the suit in the marine court, it is somewhat difficult to determine which of the two cases above described the pleader intended to set up in his answer. The allegations of fraud point to the first. The allegation of a condition precedent points to the second. The .judge, however, in his charge, plainly treated it as a case of the second description. His emphatic declarations in the beginning of his charge, that the brokers stood in confidential relations to their principal, leave no doubt on this point.
    VI. A verdict and judgment can never establish anything more than is necessary to support them ; and all that was necessary to support them in the suit in the marine court was a finding that the brokers stood in confidential relations to the sellers, were bound to give their principal the benefit of their best judgment and discretion in finding a responsible purchaser, and failed to discharge this obligation.
    VII. No argument is necessary to show that such a determination does not establish for the plaintiffs the issue in the present action. That issue is, that the defendants, standing as strangers to the plaintiffs, committed a fraud upon them, entitling the plaintiffs to affirmative damages.
    VIII. If the preceding views are well founded, they effectually dispose of the only authority which the plaintiffs can cite to maintain this action. A physician, in suing for his compensation, is bound, affirmatively, to show the exercise of care and skill. The defeat of his action is an adjudication of the failure to, exercise such care and slcill. And such failure necessarily carries with it liability on his part for the damages sustained thereby (Gates v. Preston, 41 N. Y. 113 ; Bellinger v. Cragie, 31 Barb. 534; Edwards v. 
      Stewart, 15 Id. 76). He also contended that the stenographer’s minutes failed to show that the question determined in the marine court was the saíne as that raised in this action.
   By the Court.—Monell, Ch. J.

I think it quite clear that one of the issues raised by the pleadings in the marine court suit, was the fraudulent representations which are made the grammen of the action in this court.

The defendants—who were plaintiffs in that court— brought their action to recover, as the plaintiffs’ brokers, for services in effecting sales of ‘1 bagging,” to sundry persons and firms, including the firm of Osborne, Bullard & Co. The amount claimed upon sales, other than to Osborne, Bullard & Co., was ninety dollars and fifty-three cents, and upon sales to the latter firm, sixty dollars and sixty-five cents.

The plaintiffs in their answer in the marine court, admitted the claim to the extent of sixty-one dollars eighty-nine cents, for brokerage, other than upon sales to O. B. Co., and as to the claim for brokerage upon sales to that firm, the plaintiffs alleged the false representations, substantially as they are alleged in their complaint in this action;—and then proceeded as follows: “ That without said representations defendants would not have made s.uch sale, and that the full payment by said Osborne, Bullard & Company was and is a condition precedent to any payment of brokerage or commissions to plaintiffs on such sale. That said Osborne, Bullard & Company were at the time of said representations and sale, and still are insolvent, not safe to be trusted, not able to pay their debts and unable to pay for said goods; all which plaintiffs well knew at the time of said representations, and that plaintiffs well knew said representations to be false and made same with intent to cheat and defraud these" defen dan ts. That a great portion of the value of said goods, to wit, the sum of five thousand seven hundred and fifty-two dollars and fifty-one cents, has not been paid.

And these defendants further answering deny each and every allegation in the complaint not hereinbefore admitted. The answer also set up a contradiction ; to which there was a reply.

It appears, I think, very distinctly from the stenographer’s minutes of the trial of the marine court suit, that the only question litigated in that trial was the fraud alleged in the sales to Osborne, Bullard & Co. All the evidence on either side related to these sales. None whatever was given in respect to any of the sales not covered by the plaintiff’s admission, except the sales to Osborne, Bullard & Co. ; and the court presented no other question .or subject to the jury.

If the proof offered was competent, I see no reason to doubt that the only question litigated in the trial in the marine court, was the precise question involved in the action now before us.

Nor is there any doubt that by the verdict and judgment in that court, the issue was found against the present defendants and is conclusive upon them.

The objection to the judgment roll in the marine court action, was, that it was irrelevant and incompetent ; and the objection seems to have been sustained on those grounds.

As the judgment roll is not printed in the case, we do not know to what extent it would show an adjudication upon the questions raised by the pleadings in that action; and we must rely, therefore, upon the pleadings in this action, and the proof furnished of the issues then tried.

The pleadings in that suit are in the case, but they do not show that the only issue was the fraud. Three items of brokerage, besides the Osborne, Bullard & Co. sales, are not admitted, and may have been litigated on the trial.

But the complaint in this action, after alleging that, the only question tried in the marine court suit, was the alleged indebtedness of these plaintiffs for the services of those defendants in procuring the sales to Osborne, Bullard & Co. avers, that the jury gave these defendants a verdict for the amount admitted to be due and no more, and “disallowing said claim of the defendants for brokerage on the said sale of goods to O. B. & Co.” “ Wherefore judgment was entered pursuant to said verdict.”

The answer to the complaint denied that the only question tried in the marine court suit, was the alleged indebtedness for services in procuring sales to O. B. & Co. ; and the defendants say, that the question of the right of the plaintiffs to damages for the alleged frauds, was also tried.

The denial in the answer amounts to an admission that the question of plaintiffs’ indebtedness upon the sales to O. B. & Co., was tried and disposed of in the marine court áuit: the denial going only to the extent, that it was not the only question tried, but that the plaintiffs’ right to damages, was also tried.

The plaintiffs have the right to take the part of the admission which favors their case, and leave the avoidance to be established by the defendants.

Sufficient appears, therefore, I think, from the pleadings, to establish the fact that the only question litigated in the marine court suit was the fraud of the defendants, and that the question was disposed of by the judgment of the court in that case, against the defendants.

The allegation that the plaintiffs’ right to damages was also tried, is not sustained by any proof. JSTo claim to damages was made by the pleadings, and none appears to have' beun made on the trial.

The offer to prove by parol what subject was litigated in the marine court suit, was an offer made in conjunction with the offer to prove the judgment, and to show that the question of fraud involved in this, was litigated and disposed of in that action.

With such proof it would have rendered the judgment conclusive upon the defendants upon the question here litigated.

That such proof was competent was decided in Kerr v. Hays (35 N. Y. 331), where it was offered to prove aliunde the record, what was litigated and necessarily passed upon by the verdict: and the proof was held to be competent (White v. Madison, 26 N. Y. 117).

It was error, therefore, to exclude the offered evidence.

The accuracy of the stenographic report of the trial, although questioned and objected to by the defendants, when they were first offered, does not seem subsequently to have been insisted upon, and was substantially waived at the close of the trial. They were, therefore, before the court to be used to give effect to the judgment. When the judgment' roll was again offered, the court had before it sufficient proof that the judgment covered the precise question then in litigation, and I can see no reason why it was not thereby made material and competent.

Had the judgment roll been admitted it would have established the plaintiffs’ cause of action, and been con. elusive upon the defendants (White v. Merrill, 7 N. Y. 355; Demarest v. Dorg, 32 Id. 281 ; Gates v. Preston, 41 Id. 113).

The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

Sedgwick, J., concurred.  