121 US 525 Milne v. Deen

121 U.S. 525

7 S.Ct. 1004

30 L.Ed. 980

MILNE, Ex'r, etc.,

April 25, 1887.

On the twenty-ninth of October, 1873, Ann Maria Deen, the plaintiff in the court below, leased to one Mary C. C. Perry, of New York, by an instrument under seal, the house known as No. 4 East Thirtieth street, of that city, with the furniture therein, for the term of two years and ten months from the first day of November, 1873, at the rent of $450 a month, payable in advance, with a clause of re-entry in case of default in the payment of the rent, or in any of the covenants of the lease. At the same time, and upon the same paper, the defendant, William M. Wilson, of New York, in consideration of the letting of the premises to the lessee, and of the sum of one dollar paid to him by the lessor, by an instrument under seal, covenanted and agreed with her that, if default should be made at any time by the lessee in the payment of the rent, and performance of the covenants contained in the lease, he would pay the rent, or any arrears thereof, and all damages arising from the non-performance of the covenants.

No rent was paid by the lessee except for the first month, and soon after December, 1873, she ceased to occupy the house, and abandoned it. In March, 1874, the lessor gave notice to her that, as she had abandoned the house, and there was danger of the furniture being injured, possession would be taken, and the premises rented for the remainder of the term; and that the lessor would look to her for any deficiency in the rent, and for the expenses of reletting, as well as for all damages that might be sustained by reason of the loss of or injury to the furniture. In April, 1874, the lessor took possession of the premises, and in November following leased the house, without the furniture, to one Sherman, for two years and five months from December 1, 1874, at $3,600 a year, payable in half-yearly payments, in advance. For the e ficiency of the rent on the original lease, after deducting the amount collected from the new tenant, the present action was brought against the defendant as guarantor for the rent.

To the complaint setting forth the lease, the covenant of guaranty, the new lease, and the deficiency claimed to be due upon the lease, the defendant answered, denying, among other things, the allegations of abandonment of the premises by the lessee, of notice to her of the intention of the lessor to resume possession, and of the amount due; and for a separate defense alleged that in December, 1873, the plaintiff brought an action in the marine court of the city of New York against the defendant for the rent of the same premises for that month, and that the defendant recovered judgment therein against the plaintiff in the action, upon the merits thereof, and for costs.

On the trial, to meet the case established by the plaintiff, the defendant, among other things, gave in evidence the judgment book of the marine court, showing a judgment, entered on the twelfth of March, 1874, in favor of the defendant, William M. Wilson, against the plaintiff, Ann Maria Deen, for $55.91 costs; and also the judgment roll in the action containing the summons and complaint, the answer, minutes of the verdict for the defendant, and the judgment in his favor. The complaint was upon the same lease as that upon which this action is brought, and was for rent for the month beginning on the first day of December, 1873. The answer, treating the lease and the covenant upon it as one instrument, set up that 'on or about the twenty-ninth day of October, 1873, the plaintiff, by false and fraudulent statements, obtained the signature of Mary C. C. Perry and of this defendant to a paper purporting to be a lease of the premises described in the complaint; that the said Mary C. C. Perry and this defendant were both misled by the false representations; and that the said Mary C. C. Perry and this defendant were induced by their belief in the truth of such representations to sign the said paper.' It was admitted of record by counsel for the plaintiff that 'the only issue tried' in that action in the marine court 'was that of fraud in procuring the lease,' and that there was no issue as to the payment of the rent, or as to the delivery of the lease.

When the evidence was closed, and the parties had rested, the defendant moved that the complaint be dismissed, on the ground that the judgment in the marine court was a bar to the action; but the court denied the motion, and the defendant excepted. Afterwards the court directed the jury to find a verdict for the plaintiff for $12,026.89, the full amount claimed, less the rent for the month of December, 1873, which they accordingly did. To this direction an exception was taken.

[ John C. Gray and Edward C. Perkins, for plaintiff in error.

H. T. Wing and Jos. A. Shoudy, for defendant in error.

[Argument of Counsel from pages 528-531 intentionally omitted]



The conclusion we have reached as to the effect of the judgment of the marine court renders it unnecessary to pass upon, or even to state, the other questions raised in the progress of the trial. There is nothing in the record tending to impair the force of that judgment. Notice of appeal from it to the general term of the court was given, but it does not appear that the appeal was ever prosecuted. The alleged parol stipulation by counsel, that the judgment might be vacated, is not admitted; but, if made, it is not shown to have been acted upon by any entry on the records of the marine court. The proceedings in the suit in the supreme court to cancel the lease, and the ruling of the court of appeals therein, that evidence of contemporaneous or preceding oral stipulations could not be received to control the lease, have no bearing. upon the question before us, and the proceedings in the suit are still pending. As the case stands before us, the judgment of the marine court is in no respect impaired, and the defendant can invoke in his behalf whatever it concluded between the parties. The validity of the lease in suit here was involved there. The answer there alleged that, by false and fraudulent representations, the signature of the lessee was obtained to the lease, and that both she and the defendant, Wilson, were misled by those representations to sign the paper. The parties admitted that the only issue in that action was 'that of fraud in procuring the lease.' That issue being found by the verdict of the jury in favor of the defendant, the judgment thereon stands as an adjudication between the parties, by a court of competent jurisdiction, that the rease was obtained upon false and fraudulent representations of the plaintiff, and therefore was of no obligatory force. It determined not merely for that case, but for all cases between the same parties, not only that there was nothing due for the rent claimed for the month of December, 1873, but that the lease itself was procured by fraud, and therefore void.


In Cromwell v. County of Sac, 94 U. S. 351, we considered at much length the operation of a judgment as a bar against the prosecution of a second action upon the same demand and as an estoppel upon the question litigated and determined in another action between the same parties upon a different demand, and we held, following in this respect a long series of decisions, that in the former case the judgment, if rendered upon the merits, is an absolute bar to a subsequent action, a finality to the demand in controversy, concluding parties and those in privity with them; and that in the latter case,—that is, where the second action between the same parties is upon a different demand,—the jUdgment in the first action operates as an estoppel as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered.


Of the application of this rule Gardner v. Buckbee, 3 Cow. 120, furnishes an illustration. There it appeared that two notes had been given upon the sale of a vessel. On examination, the vessel proved to be unseaworthy, and the maker of the notes refused to pay them on the ground of fraudulent representations by the vendor. Thereupon an action was brought by the holder upon one of the notes in the marine court of the city of New York. The defendant pleaded the general issue, with notice of a total failure of consideration for the notes, on the ground of fraud in the sale of the vessel, and upon that point judgment was rendered in his favor. The holder thereupon brought an action upon the other note in the court of common pleas of the city of New York, and at the trial the defendant offered in evidence, in bar of the action, the record of the judgment in the marine court, the defense being fraud in the sale of the vessel, and the judgment having been rendered directly upon that issue between the same parties. The court of common pleas decided that the judgment was not a bar, but the supreme court of the state reversed the decision, declaring the law to be well settled that a judgment of a court of concurrent jurisdiction directly upon the point is, as a plea or evidence, conclusive between the same parties upon the same matter directly in question in another court, referring to and following the rule laid down by Chief Justice DE GREY in the celebrated Case of the Duchess of Kingston. It was urged that the judgment in the marine court did not affirm any particular fact in issue in the common pleas, but was general and indefinite, and that, from the language of the record, it could not be inferred whether the two cases were founded upon the same or a different state of facts; but the court answered that it was true the record merely showed the pleadings and that judgment was rendered for the defendant, but it showed that it was competent on the trial to establish the fraud of the plaintiff; and whether fraud was the point upon which the dicision was founded could be proved by extrinsic evidence, and that the admission of such evidence was not inconsistent with the record, and did not impugn its verity.


This decision has been frequently cited with approval by this court and the courts of every state. It is everyh ere recognized as correctly applying the law as settled in the Duchess of Kingston's Case. It is not possible to distinguish it from the one before us. Fraud in procuring the lease, upon which this action is brought, was the point in issue in the action in the marine court between the same parties, and it having been found by the verdict of the jury against the plaintiff, and judgment having been rendered upon that finding, the fact thus established must necessarily defeat any subsequent action upon the same instrument between those parties. The effect of the judgment is not at all dependent upon the correctness of the verdict or finding upon which it was rendered. It not being set aside by subsequent proceedings, by appeal or otherwise, it was equally effective as an estoppel upon the point decided, whether the decision was right or wrong. Packet Co. v. Sickles, 5 Wall. 582; Lumber Co. v. Buchtel, 101 U. S. 638; Tioga R. Co. v. Blossburg & C. R. R., 20 Wall. 137; Pray v. Hegeman, 98 N. Y. 351; Merriam v. Whittemore, 5 Gray, 316.


It is stated in the brief of counsel, and it was repeated on the argument, that the judgment of the marine court has been vacated by the supreme court of the state since this case was tried, in an action brought for that purpose. If such be the fact, it cannot be made available in this court to obviate an erroneous ruling at the trial. During the pendency of the case in this court the defendant below, plaintiff in error here, has died, and the executor of his estate has been substituted as a party in his place.


Judgment of the court below reversed, and cause remanded, with direction to award a new trial.