Blodgett v. Dow , 81 Me. 197 ( 1889 )

Libbey, J.

The plaintiffs seek to recover in this action on a promissory note given by William Rollins, the defendant’s intestate, to one Ellen P. Blodgett, or order, dated June 19, 1876, for 11000, payable in three years with interest, and by said Blodgett duly indorsed.

The note was seasonably presented to the commissioners in said Rollins estate, disallowed by them, and appeal taken by the plaintiffs.

No question is made as to the rights of the plaintiffs to recover, if the right of action is not barred by the judgment relied on in defense.

February 24, 1880, the plaintiffs commenced an action against said Rollins, then living, in the superior court for Kennebec county, declaring in their- writ on four promissory notes, in four counts, the first declared on being the note in suit. The action was entered at tbe April term of said court, when tbe general issue was pleaded by tbe defendant. At tbe September term of tbe court tbe action was referred, by rule of court, to referees, who beard tbe parties and made a general award in favor of the plaintiffs, which was returned to the court at tbe December term, 1880, accepted, and a general judgment entered thereon.

Tbe plaintiffs claim that tbe note in suit was not passed upon by tbe referees ; and therefore that the judgment is no bar; and the contention between tbe parties is, whether it is competent for tbe plaintiffs to prove by parol that the note was not in fact, passed upon by the referees, and formed no part of tbe sum awarded.

We think it is not competent to explain the judgment as proposed.

When it appears by the pleadings, that the subject matter in controversy was directly and necessarily in issue in tbe action, a general judgment, either on a general verdict of tbe jury or a general award of referees, while it stands unreversed, is a bar to another action for the same cause. The parties are estopped by it. But when tbe pleadings are such that the subject is not directly in issue, but may or may not be put in issue in tbe action, and tbe judgment does not disclose whether, in fact it was or not, the fact may be proved by parol; and this we understand is the distinction. Cunningham v. Foster, 49 Maine, 68; Walker v. Chase, 53 Maine, 258; Cromwell v. County of Sac, 94 U. S. 351; Campbell v. Rankin, 99 U. S. 261.

Here, in tbe action of tbe plaintiffs v. Rollins, the note in suit was specially described in the first count in the writ, and went to the referees for adjudication. There is nothing in the record showing it was withdrawn. The judgment on the general award estops the plaintiffs and cannot be explained by parol. If, at the hearing, the plaintiffs for any reason, were not prepared to litigate the note, they should have seen to it, that it appeared by the judgment, that it was withdrawn.

Judgment for the defendant.

Pfaers, C. J., Walton, Daneorth, Yxrgin and Foster, JJ., concurred.