Brice v. Starr , 90 Wash. 369 ( 1916 )

Bausman, J.

Defendants, obtaining by agreement plaintiff’s deed to certain land, hurriedly mortgaged it to an innocent third person and, instead of giving plaintiff security upon it, left the state with all they had borrowed. Plaintiff forthwith brought this suit in fraud to recover from defendants a sum equal to the mortgage which he would have to discharge. In the same month he brought a second action, which, as finally amended, was to cancel the deed for the same fraud, and that later suit reaching judgment first, he set it up to reinforce this complaint with the fraud adjudicated. The defendants, after vainly endeavoring by demurrer and answer to exclude that record from this suit, finally retorted by themselves invoking it. The cancellation, they argue, involved the whole and present situation. If plaintiff did not get the money also in that suit, it must be presumed that it was either denied there or waived.

Now the fraud was not in obtaining the deed, but in violating its objects. It was impossible for plaintiff in his second suit to get a cancellation upon other ground than the fraudulent mortgaging. That, and that only, was the fraud. Consequently plaintiff attempted to divide a single cause of action. The judgment in the second cause concluded his rights. If he were not wronged by the mortgage, he had no right to have his land back, and when he got that back, he left out part of his redress if he did not ask for the mortgage money too. There was but one breach of contract or act of tort and all items of compensation should have been included. Collins v. Gleason, 47 Wash. 62, 91 Pac. 566, 125 Am. St. 891; Collins v. Gleason, 47 Wash. 69, 91 Pac. 568; Carmean v. North American Transp & Trad. Co., 45 Wash. 446, 88 Pac. 834, 122 Am. St. 930, 8 L. R. A. (N. S.) 595; Sullivan v. Baxter, 150 Mass. 261, 22 N. E. 895; Watkins v. Lawton, 69 Ga. 671. The fact that, in the second suit, there were additional parties, the mortgagee as an additional defendant and the present plaintiff’s wife as an additional plaintiff, does not alter the applicability of the judgment, for these were immaterial parties. Kaufman v. Klain, 69 Wash. 113, 124 Pac. 391. And how can plaintiff be allowed to raise this feature? It is he who first brings that judgment into this case to bind the defendant.

The learned trial judge, in an honest effort to prevent wrong, relieved plaintiff by estoppel through defendants’ counsel. It seems that oral negotiations had sprung up between the latter and plaintiff’s counsel about consolidating these two causes. The facts favorable to plaintiff are that the second suit did not originally allege fraud, but was merely to quiet title without the actual facts. It could not finally have prevailed, indeed, except through evidence of the fraudulent mortgage, but it was free from inviting that issue. However, plaintiff’s own counsel asked leave later to file in it a second amended complaint narrating substantally what he had already set up in the present and then also pending suit, and asking cancellation for fraud instead of mere quieting of title. Up to this point it might be conceived that he did this (though an unnecessary thing even for that purpose) in pursuance of expected consolidation, but he could not have been misled, because defendants’ counsel immediately opposed in writing the attempted change. It was over their objection that he successfully duplicated the first action in the second with all but the prayer for money relief. He even went further. He included demands for damages in other items for use and occupation. Nor can his object in seeking a judgment on fraud in that case also be denied. He immediately pleaded it in this case to forestall the only defense possible and to leave the recovery of the mortgage money only a form.

Defendants’ counsel roundly deny what plaintiff’s counsel says about consolidation, and this court is forbidden by law to recognize the talk of lawyers out of court. Rem. & Bal. Code, § 130 (P. C. 25 § 21). Upon the record, defendants have vigorously resisted both suits. Nothing in their conduct implies expected consolidation. Everything indicates the contrary. When, after the second case was altered, they stipulated in writing that a certain deposition might be taken on behalf of plaintiff and used in either suit, it is to be noted that nothing was said about consolidation. While they frankly admit, to be sure, that they had expected consolidation, there is nothing to indicate the faintest intention that such consolidation or separate trial, either, should be after amendment, or judgment in the second case should better plaintiff’s position and close the mouths of defendants. The very contrary is at all times apparent.

In fine, there is here neither fraud nor accident nor mistake in the omission of a money claim in the suit that went first to judgment. Even a rascal is entitled to the law of evidence and to the established procedure. We have here a provoking case, but we could not relieve plaintiff without violating rights to which even the meanest are entitled. It was not the defendants, but plaintiff, who hurried and invoked the other judgment.

The judgment is reversed.

Main and Parker, JJ., concur. Morris, C. J., dissents.