Kapp v. Shields , 17 Pa. Super. 524 ( 1901 )

Opinion by

William W. Porter, J.,

In December, 1894, the plaintiff leased, by writing, a house to one Quinn. The defendant became surety for the rent. Quinn went into possession in January, 1895. Suit was brought against the surety for rent in arrear for the months of March, April, May and June. Defense was made and a verdict rendered for the plaintiff for about one half of his claim.

The present suit is for rent due from July 1, 1895, to the expiration of the lease, (a period of about two and a'half years), during which time the tenant was not in possession. By agreement of the parties, credit was given by the landlord for rent earned pending this controversy. It is claimed by the defendant that the judgment rendered in the first suit was a judicial determination of the whole question of liability under the lease and that the effect of it was to estop the plaintiff from recovery in the present action, in other words, that the matter now in controversy is res adjudicata. Here arises the only question involved in this appeal.

The rule laid down in the Duchess of Kingston’s case is spoken of in Hibshman v. Dulleban, 4 Watts, 191, by Chief Justice Gibson, as a brief and comprehensive summary furnishing a rule for every case that any complication of circumstances can produce. See also Lentz v. Wallace, 17 Pa. 415, and Lewis and Nelson’s Appeal, 67 Pa. 158. The rule is this: “ The judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar; or as evidence, conclusive between the same parties on the same matter directly in question in another court. But neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” What has the appellant given us by which to determine how this rule operates in the present case ? By the notes of the trial it appears that the whole record of the former suit was offered in evidence. A small part of it only is printed. We are told by the appellee that ten witnesses were sworn. The testimony of two of them seems to have been read to the juiy, but even this testimony is not printed. We thus have before us none of the testimony in the form in which it was submitted at the first trial. We observe further that the defendant does not seem to have offered any proof, dehors the record of the first suit, to show what question of fact the jury there passed upon. He might have done so, since whenever it does not contradict the record, parol evidence may be given to show the basis of a former recovery: Follansbee v. Walker, 74 Pa. 806.

We are, however, furnished with copies of the statement of clainr and the affidavit of defense in the first suit. From the former it appears that the rent was payable in monthly instalments, and that the suit was for certain of the instalments. The record of the present action shows that the suit is for subsequent instalments of rent alleged to have fallen due. This furnishes a substantial difference in the matter in question in the two suits: Sterner v. Gower, 3 W. & S. 136. Indeed, had the subsequently accruing instalments been erroneously included in the first action, and had this appeared bjr the record, a general verdict for the plaintiff might not have been a bar to a second action for the subsequent instalments: Kane v. Fisher, 2 Watts, 253; Carmony v. Hoober, 5 Pa. 305. The defendant might possibly, in the former suit, have asked for a special finding that he was relieved from liability under the lease because of failure of the landlord to do the promised work upon the house: Rockwell v. Langley, 19 Pa. 509. He apparently did not do this and must bear the results of any ensuing uncertainty as to the effect of the verdict and judgment. But the weight of presumption, as the case now stands, is rather in favor of the converse of his contention. The verdict in the first case seems to be that there was a liability to pay rent under the lease, but that the amount due in view of the defendant’s claim, should be diminished. ■ This‘would seem to be the result if proof was adduced to support the allegation in the affidavit of defense, of a total failure of consideration. If this be the proper inference to be drawn from the verdict, the effect upon the second action would seem to be to leave open only the question, whether the amount due for -the unexpired term should be diminished by reason of the continued failure to do the work upon the property.

What purports to be a copy of the charge of the court as filed of record in the first case, has been furnished to us. This we may examine to determine if possible on what point the former recovery was had: Follansbee v. Walker, supra; Carmony v. Hoober, supra. The jury were in substance instructed (1) that they must be satisfied that the alleged promises inducing the signing of the lease were made; (2) that the agent who made the promises had authority to make them; and (3) that if satisfied that the promises were made, and by authority, the defendant was entitled to a deduction. On these instructions the jury, as we have seen, found for the plaintiff. The result furnishes no basis for the contention that the matter now contended for, namely, total exoneration from' liability under the lease, based upon the broken promises of the alleged agent, was the matter “ directly in question ” in the former trial.

We are of opinion that no error injurious to the appellant was committed by the court below and the judgment is therefore affirmed.