
    LAWRENCE vs. WARE.
    [ACTION ON MtOMISSORY NpTE, BYvASSIGNEE AGAINST MAKER.]
    
      %..Conchmveness of judgment as lar. — "Where a, promissory note, -which had "been transferred "by delivery, was placed "by the transferred in the hands o£, an agent, with instructions to present it to the malcer for payments and, if payment was;¡refused,|,to put it in the hands.of an attorney, for collection,by suit; and, payment having been refnsed, the agent :sent the note to an attorney, ,wh.o, not being informed of the name of thareal owner, brought suit' on it. in the name of the agent, and the action wa? .successfully defended,' on the plea of sat-off against the pay ee — held, that the judgment ip that action wás-not a bar to a subsequent action on the note by the owner, who wap not shown to haye had notice of‘the pendency of that action.
    Appeal from the Circuit Court of Shelby.
    Tried before the Hon. WA- S. Mudil
    This action was brought' by Noah, Lawrence, agganst Horace Ware was founded on- the defendant’s promissory note for $87 87, dated 25th May, 1854] and payable on ¡the 1st January,, 1S55, to, Matthew Lqe or order; and was commenced on. the 3d August, 18-58. The defendant pleaded a former judgment on the note, in his favor; and issue was joined on that plea. On, the trial, as,the bill of exceptions states, after the plaintiff bad read in evidence the note on which the suit was' founded, the defendants offered in- evidence the record of the suit on which he relied as a bar. That suit was brought in the name of one L- Vandever as plaintiff, and against the defendant(in this . case ;; was founded on .the same promissory note which is the foundation of the action in this case ; and judgment was.rendered, on the 11th March, 1858, the verdict,of a jury, in,.favor- of the defendant; but the.-record does mofe-show what pleas were interposed. “ It was admitted, that': on the trial of that suit, under the plea of set-off, the de fondant proved, that lie had employed Mhtthew Lee, the payee of said note, to transport a large quantity of pig-iron for him, in flat-boats, down the Coosa river to We-tumpka; that said iron was sunk in the Coosa river, in consequence of said- Lee’s failure to perform his duties in reference to the transportation, and was thereby wholly lost to the-defendant, and that-the-value of said iron-was greater than the amount of the said note. It was admitted, also, that the only issue tried in tMt suit "was the' validity and sufficiency of the said set-off, and that the jury found tlieir verdict for the-defendant on that issue. -It was admitted, also, that Lawrence, the- plaintiff in.'¡‘the present suit, held said note by transfer from said ¡payee by delivery, and that said transfer was for a valuable and sufficient consideration. It-was proved by said Vandever, on the trial in this case, that said^plaintlff^Lawrcnce) delivered said note to him, and requested him to call on Ware, collect the money, and, if paid, send'-tho money'to «him ; -that said witness called on defendant for the money,'-who failed and refused to pay the same ; that he then informed plaintiff, who resided in >Oa.llionn county, of the defendant’s failure to pay the note, and was instructed by him to place it ia the hands of an attorney, for collection by suit ; that, being unacquainted with any attorney in Shelby county., he handed said note to one Moore; to he ¿delivered by him to an attorney, but-did not telLsaid Moore to whom said note belonged; and that be (witness); bad no- interest in said note, and had no knowledge that-the suithad been brought in his- name until after the same had been tried. It was admitted, that the suit- was brought by the attorney in the name of said Vandever, because he was informed that it was sent by him, and the name of no other owner was disclosed-.”
    On the facts above stated, the plaintiff proposed to prove, “that the alleged set-off, proved by the defendant @n the trial of the former suit, was unjust, untrue, and improperly allowed; that the defendant sustained: in-¿act u® loss or damage in consequence of the sinking of the irosa ini«the .river ; that the alleged contract with said Lee, for the transportation of the iron,, was made after-the- defendant had notice of the transfer of said note by Lee' to said plaintiff; and-that said note was- in fact given for a debt due-from said defendant to plaintiff,, (except a small balance due from said defendant to Lee;) and-' was so-,given- because said Lee informed defendant that- he would deliver the note: to plaintiff.” The court excluded This evidence, and-©barged the jury, “that,-if they believed-the evidence, they must find for the defendant.” The plaintiff excepted-to the-ruling of the court-in excluding-the evidence offered by him, and to the charge to the jury,; and he-now assigns the same as error.
    S. Leiper, for appellant.
    MaexiN & Heflin, contra.
    
   A. J. WALKER, C. J.

The general principle is, tliát judgments and'.verdicts'.-are-only binding on parties and privies. The plaintiff in this suit was neither a party nor privy to the former suit “which is , pleaded in bar. With the person in whose name the former suit was brought, the plaintiff- occupied no relationship, in reference to the property in'the note, which would constitute privity. — 1 Green-leaf on Evidence, §§ 189, '523. -The only relationship which existed between Them,, was that of a temporary agency on the part of'the'plaintiff in the former suit, to demand payment of the note, and, in default of payment,, to deliver it to an attorasy.for collection.

It was decided in Mayer v. Faulkrod, (4 Wash. C. C. 503,) that where the suit .'was brought in the name óf an improper plaintiff, and a. recovery had, and payment made, there being no collusion, the payment would constitute?a defense' to an action 'by the: true owner of the cause of action. But that decision is put expressly upon the ground of a payment, made by thedegal- and compulsory sentence of a competent tribunal ;-and it is admitted that, - in the absence of such payment, the .former judgment would be no' defense. Besides,, the correctness of that decision is doubted. — -2 Part Cow. & Hilbs Notes.to Phil. Ev.,(3d.ed*) 167.

It is true that the court will always inquire who are-the.' real parties, in determining whether a former judgment'ia--a bar. But there is nothing in the record in this .case, which authorizes, the inference that, the plaintiff was the real party in the former suit.. The other suit was, as to him, res infer alios,-acta. ' He had no right to control the proceedings in the case, or to produce or cross-examine witnesses, or, to appeal; and it does not at all appear that he-participated?,in conducting it, or ev-en knew of its existence.

Beversed and remanded..  