
    WILCOX against LEE.
    
      New York Superior Court ;
    
    
      General Term, November, 1863.
    Former Adjudication.
    
      A judgment in favor of the defendants, in an action to recover the price of goods sold, which proceeded upon the ground that they were sold on a credit which had not expired when the action was brought, is not a bar to a second action brought after the credit has expired.
    
      Where such judgment does not affirmatively disclose the ground upon which it proceeded, hut there was uncontradioted proof of such unexpired credit, and the existence of such credit was the only question argued on submitting the case, it will he inferred that the judgment proceeded solely on that ground, although evidence in support of another defence was given on the trial.
    This was a motion by the defendants for a new trial, on exceptions taken at the trial, and there ordered to be heard at general term in the first instance.
    The action was brought by Horatio R. Wilcox and Joshua Draper, for goods sold and delivered in March, 1861, to a firm composed of the defendants and one George A. Dunlap, at the agreed price of four hundred and fifty dollars, on eight months’ credit. The defendants were Uriah M. Lee, Charles P. H. Ripley, and Charles M. Hoyt. The defendants Ripley and Hoyt, in their answer, setup a former trial in the Marine Court, in July, 1861, for the same cause of action, in a suit by these plaintiffs against these defendants and said Dunlap, and allege in their answer that “judgment therein was rendered in favor of the defendants, on a question of fact, on the 24th of July, 1861. The sale and delivery of the goods in March, 1861, to the defendants at the agreed price of four hundred and fifty dollars, on a credit of eight months, was fully proved on the present trial. The defendants then proved that in July, 1861, these plaintiffs sued these defendants and Dunlap in the Marine Court, and in their complaint claimed to recover for goods sold and delivered to such defendants in March, 1861, at the agreed price of four hundred and fifty dollars. The complaint in that action did not state whether the goods were or were not sold on a credit, but it alleged that the four hundred and fifty dollars was due, with interest from April 1, 1861, and prayed judgment accordingly.
    The answer of Ripley and Hoyt in that suit denied each and every allegation in the complaint.
    It was proved on the trial of this action that, on the trial in the Marine Court, evidence was given of the sale and delivery of the goods, and that they were sold on a credit of eight months. George JB. JBonta, the person who made the sale, was asked, with reference to his testimony on the former trial, thus: “ Q. Did you not testify that the sale was a cash sale, “ and you applied to them for a note, according to the custom “ of that kind of sale ?
    “ A. I asked for a note; it was not given; it was then con- “ sidered a cash sale, according to the custom of merchants.”
    It was also proved that a question raised and argued in the Marine Court was, whether the goods were sold on a credit of eight months, and that this was the only question argued on submitting the case.
    The judge who tried the cause, testified that he did not recollect on what ground he decided it, “whether on the ground of unexpired credit, or on the ground that the sale was made by Bonta individually. The defendants sought to prove that Bonta sold the goods in his own name, and on his own account. Ho judgment was entered in the docket in the Marine Court, but there was indorsed on the summons and complaint, in the handwriting of the judge, the words—“ Judgment for defendants, with, costs and ten dollars allowance.” On the present trial, the judge ordered a verdict for the plaintiffs for four hundred and eighty-one dollars and fifty cents, the amount of the goods and interest; and the defendants excepted to the decision.
    
      L. S. Chatfield, for defendants.
    I. The former trial and decision was a Ml and complete bar to this action. The parties were the same, the pleadings the same, the cause of action the saíne, the evidence the same; and the cause was finally submitted on the merits, and decided by the court (McGuinty v. Herrick, 5 Wend., 244; Bockway v. Kinney, 2 Johns., 210; Rice v. King, 7 Johns., 20 ; Thomas v. Rumsey, 6 Johns., 26; Johnson v. Smith, 8 Johns., 383 ; Platner v. Best, 11 Johns., 530; 15 Johns., 432; Phillips v. Berick, 16 Johns., 136; Gardner v. Buckbee, 3 Cow., 120; Coles v. Carter, 6 Cow., 691; Morgan v. Plumb, 9 Wend., 287).
    II. The record was conclusive, and could not be varied by parole: The record of the former trial was complete, and established a sufficient bar (Sutton v. Dillaye, 3 Barb., 529; Noyes v. Butler, 6 Barb., 613; Foster v. Trull, 12 Johns., 456 ; Brush v. Taggart, 7 Johns., 19).
    HI. There is no force in the objection that the judgment was not docketed. If the cause is finally submitted to the court it is enough, whether it is decided or not—but here it was decided (Felter v. Mulliner, 2 Johns., 181; Burt v. Stemburgh, 4 Cow., 559).
    IY. The grounds of decision were not inquirable into. The cause was submitted on the merits, and it is not material on what ground the judge decided. The judgment, as entered, was, “judgment for defendants, with costs, and ten dollars allowance,” and was not a non-suit or dismissal.
    Y. The action could not be maintained against these defendants. Hoyt was not a member of the firm when the goods were sold, and no notice of dissolution to Wilcox and Draper, was necessary.
    
      Gilbert Dean, for plaintiffs.
    I. Where a former judgment is set up as a defence, parole evidence is admissible to show what was actually in controversy between the parties, and the grounds upon which the judgment was rendered (Doty v. Brown, 4 N. Y. [4 Comst.], 71; 8 Wend., 9; 4 Barb., 457; 36 Barb., 95).
    II. The decision of the Marine Court, ordering judgment for defendants, was therefore merely a judgment of non-suit, and no bar to this action.
    III. The judge who tried this cause properly ordered-judgment for plaintiffs, as there was no disputed question of fact, But if there were, the defendant should have specifically excepted, or requested him to submit the question to the jury.
   By the Court.—Bosworth, Ch. J.

The defendants have had the goods for which the verdict was ordered, and have not paid for them. The question now is, whether the former trial and judgment are a bar to a recovery in this action. It is quite clear that on the trial in the Marine Court, as in this, the evidence of the sale of the goods, at the agreed price of four hundred and fifty dollars, on a credit of eight months, was uncontradicted. The evidence on this trial shows that, in the suit in .the Marine Court, Bonta testified that he sold the goods as agent of the plaintiff, and so informed the defendants at the time of the sale. It does not appear that there was any attempt to contradict him, and no evidence in. confiict with such being the facts was given on this trial.

The case comes, therefore, to this point. Judgment was given for the defendants in the Marine Court, on uncontradicted proof that the sale was on a credit of eight months, which had not elapsed. It cannot be conjectured that it proceeded on any other ground or fact. On what ground, or fact found, the judge decided it, he does not recollect, and I lay his testimony out of view. But it does appear that the only question discussed before him on the close of the evidence was, whether the credit had expired. I think' it should be inferred that this was the only question of fact which he determined adversely to the plaintiffs, and finding that it had not, and .it being his duty to so find, he gave judgment for the defendants on that ground, and for that cánse.

If this be the correct view, then it is clear that it was not determined in the Marine Court, that the plaintiffs did not sell and deliver the goods at the agreed price of four hundred, and fifty dollars.

If it had affirmatively appeared on the present trial, that the judgment in the Marine Court was given expressly on the ground that the suit was prematurely brought, then Quackenbush v. Ehle (5 Barb., 469-472) would be an authority that the former trial and judgment wa's not a bar. .In the present case, the contrary does not appear, either by the record or the proofs; and presumptively, the first judgment could not have proceeded on any other grounds.

Quackenbush v. Ehle is not in conflict with Morgan v. Plum (9 Wend., 287-317). In the latter case, the plaintiff was entitled- to recover upon the evidence given. But judgment was given against him, contrary to the law and the evidence. His remedy was a review on a case or exceptions; and not by another suit on the same evidence.

It cannot be affirmed, or established inferentially, that the judgment in the Marine Court determined any fact, except the fact that that suit was brought before the agreed term of credit had expired. As it does not appear that any other fact was determined, and as that fact was undisputed, and entitled the defendants to judgment, and as presumptively no other fact could, have been deterinined in their favor, I think the former suit and judgment do not bar this action. •

The facts that the plaintiffs sold the goods to the defendants at the agreed price of four hundred and fifty dollars, and that the defendants have not paid any part thereof, have not been passed upon and decided against the plaintiffs. But a fact consistent with them, and found on the first trial by uncontradicted evidence, viz.: that the goods were sold on a credit of eight months, was found in the Marine Court, and having been found, die defendants had judgment.

Holding that such a judgment is not a bar to this action, does not conflict with the rule that “ a fact which has once been directly clecided shall not be again disputed between the same partiesnor with the rule that “ the judgment of a court of concurrent jurisdiction directly on the point, is a plea or bar, and as evidence, conclusive between the same parties upon the same matter directly in question in another court ” (Jackson v. Wood, 8 Wend., 9; Doty v. Brown, 4 N. Y. [4 Comst.], 71).

I think the motion for a new trial should be denied, and judgment for plaintiffs on the verdict, ordered.  