Guay v. Eastman , 77 N.H. 422 ( 1914 )

The judgment which the defendants set up in bar of the plaintiff's action was rendered in a suit brought by the Berlin National Bank against the plaintiff in this action. As the defendants are neither parties nor privy to the judgment, it is evidence of the fact of its rendition and of the amount for which it was rendered, but not of the facts which were in issue between the parties to it. Harrington v. Wadsworth, 63 N.H. 400; 1 Gr. Ev., s. 527. Guay cannot use it as an adjudication of facts involved therein binding upon Eastman, and neither can Eastman or his executors employ it as an adjudication of particular facts against Guay. Both must be concluded, or neither is. 1 Gr. Ev. s. 524.

If the agreement now alleged was set up in the bank's suit by Guay, and other facts appeared making its existence an answer to the suit, the judgment for the bank necessarily includes an adjudication that no such agreement was ever made by the bank. So the plaintiff now alleges the fact to be, with the further allegation that he lost, not because Eastman did not make the agreement, but because Eastman had no legal power to so agree in behalf of the bank. Whether the bank defended against the agreement upon the ground of Eastman's lack of power to make it, or, conceding or not contesting the question of power, stood upon the claim that Eastman never made the agreement, are questions which will render competent evidence as to the proceedings in the course of the bank's suit.

Judgment in the suit may have been based upon the conclusion that there was no foundation for the plaintiff's claim of an agreement or promise by Eastman. While this finding would not be binding as an adjudication of the fact, or even evidence of the fact, against Guay, and it would be open to him in this suit to show what the fact was, if the judgment was not based upon Eastman's lack of power to bind the bank, — or, in other words, if it appeared that the bank did not deny Eastman's authority to make such an agreement, — the plaintiff's allegation that his loss was due to Eastman's false representation of power to act for the bank would not be sustained.

Exception overruled.

All concurred.