Parker v. Roberts , 63 N.H. 431 ( 1885 )

The former judgment is not a bar. Bascom v. Manning, 52 N.H. 132. That case does not differ from this, except in the immaterial circumstance that here the damages were fixed by agreement. A default admits all the material allegations of the writ, except the amount of damages which are assessed by the court, unless, for special reasons, an inquiry by the jury is ordered. Huntress v. Effingham, 17 N.H. 584; Toppan's Petition, 24 N.H. 43; Manchester's Petition, 28 N.H. 296; Willson v. Willson, 25 N.H. 229; Bowman v. Noyes, 12 N.H. 307; West v. Whitney, 26 N.H. 314; Chase v. Lovering,27 N.H. 295. The law and practice are substantially the same in Massachusetts. Jarvis v. Blanchard, 6 Mass. 4; Storer v. White,7 Mass. 448; Folger v. Fields, 12 Cush. 93; Colby Prac. 225. Judgment for the plaintiff, for nominal damages, at least, follows a default as of course.

After the plaintiffs, in the action against them in Massachusetts, were defaulted, no question except the amount of damages remained open. To fix that amount was the only purpose of the agreement, and its only effect. The operation of the judgment is the same as if the damages had been assessed by the court or by the jury. If the matter alleged in the answer was competent to be considered in the assessment of damages, the plaintiffs were not obliged to present it, and if not presented nor considered, it would not be barred by the judgment. Seddon v. Tutop, 6 T. R. 607.

There is no evidence that it was taken into consideration by the parties, in settling the amount of damages by their agreement. It rests upon the party setting up a judgment as an estoppel, to show that the matter in question was adjudicated by it.

It is unnecessary to determine whether the instructions requested by the defendants were absolutely correct or not. They were properly refused, because the case did not call for them. There was no evidence that Young had any acquaintance with, or skill in relation to, engines and machinery of the kind in question. Interest from the date of the writ may be added to the amount of the verdict.

Exceptions overruled.

SMITH, J., did not sit: the others concurred.