Phillips v. Godfrey — 20 N.Y. Super. Ct. 150

Majority

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Albert L. Phillips and Hiram H. Clark, Plaintiffs and Respondents v. William A. Godfrey, Defendant and Appellant.

Headnote

1. A judgment recovered in a court of another State of the United.States being a court of record and having jurisdiction of the parties and of the action, is conclusive in a suit brought upon it in the courts of this State.

2. In a suit'brought in a court of this State upon such a judgment, the defendant cannot litigate the question whether the complaint contained in the record of-that judgment states facts sufficient to constitute a cause of action; nor whether such cause of action arose in this State, and by its laws is one on which no recovery could be had.

3. Uor can such judgment be impeached by proof that it was recovered upon an allegation of misrepresentation and warranty of the quality of merchandise sold by the defendant to the plaintiffs, and proof that before the action in which it was'recovered was commenced, he sued the plaintiffs in a justice’s court of the same State, and recovered a judgment thprein before the trial.of the action against him, for the balance due upon the. contract price of such merchandise.

(Before Hoeemar, Pierreport and Robertsor, J. J.)

Submitted June 12,

decided June 30, 1860.

Appeal, by the defendant, from a judgment against him, rendered on a trial had on the third day of June, I860, before Mr. Justice Pierrepont, without a jury.

The complaint states, as a cause of action, u that in the Circuit Court, which was and is a court of record and of general jurisdiction for Racine county, State of Wisconsin, at the October term of said court, A. D., 185*7,” the plaintiffs recovered judgment against the defendant for $38*7.22, in an action in that court commenced by “ summons duly and personally served upon said defendant; that he appeared by attorney therein and defended the same; that the court had jurisdiction both over the defendant and the subject matter of the action, and duly gave judgment' therein as aforesaid that the judgment is in full force and wholly unpaid, and prays judgment for $38*7.22, with interest from October 1, 185*7, with costs.

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The answer (first) denies that plaintiffs recovered such a judgment, or that defendant was served with process, or appeared in the action stated in the complaint. It states (second) that the alleged judgment “was, if recovered at all, recovered upon an alleged transaction happening in the State of New York, and upon which, by the laws of the State of New York, no cause of action whatever accrued against this defendant.” It states (third) that the plaintiffs owe defendant $350.10 and interest, “for goods” sold by him to them, May 19, .1856, on a credit of four months; and (fourth) that they owe him the further sum of $350.10 and interest, “ for brandies, liqtíors, wines, goods, wares and merchandise,” sold by him to them May 19,1856, “ and converted by them to their own use.” It states* (fifth) that plaintiffs owe him $110 upon a judgment he recovered against them “ about the month of April, 1851,” in the justice’s court of Eacine county, Wisconsin, upon contract.

A reply was put in to the parts of the answer setting up counterclaims.

The issues joined were tried before the court without a jury, a jury being waived by consent.

It was proved, that the defendant, on the 19th day of May, 1856, sold to the plaintiffs a bill of liquors amounting, with the charges for cartage and insurance, to $350.10, (the price of the liquors being $345.53,) and that the plaintiffs gave their note at four months therefor.

That prior to June 4, 1851, the plaintiffs had paid said note except a balance of $91.68, and that on said 4th of June, 1851, the defendant recovered judgment against the plaintiffs before a justice of the peace of Eacine county, Wisconsin, for said balance of $91.68, and $3.15 costs, in all, $101.43.

That on the 9th of May, 1851, the plaintiffs sued the defendant in the Circuit Court for Eacine county, in the State of Wisconsin, and in his complaint therein alleged the sale by defendant to them, of the aforesaid bill of liquors, upon “ a representation and warranty,” on which the plaintiffs relied, that they were good, pure, andunadul

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terated liquors; and then averred that they were not good, pure and unadulterated liquors as represented by the said defendant, but were poor, worthless and adulterated liquors, and of no use or value whatever to the said plaintiffs, all of which the said defendant then and there well knew to be the fact, to the plaintiffs’ damage, $350.

The record of the judgment in that suit was produced in evidence on the trial of this action, and showed that the summons therein was served on the defendant personally, on the 9th of May, 1857; that Paine & Millet appeared as his attorneys therein, on the 15th of May, 1857, and put in an answer; in which answer the defendant admitted selling a bill of goods at the time and for the price alleged, and averred that the plaintiffs gave their note therefor, for the sum of $350.70, and had made payments thereon, reducing it to about $100 ; that before that suit was brought, he sued them.before a justice of the peace of said Racine county, to recover the balance due on the note; and that in the action before said justice, the plaintiffs set up the alleged warranty and breach thereof by way of counterclaim, and that the action in said justice’s court was then still pending, and then denied every other allegation in the complaint in that action contained.

The record contained a reply dated May 28, 1857, which, denied that the plaintiffs had set up said warranty and the breach thereof, as a counterclaim in said justice’s suit. It showed a trial .by jury of the action, a verdict for the plaintiffs therein, for $350.70, with $34.09 interest, making a total of $384.79 ; that the plaintiffs filed a remittitur by which they remitted the sum of $35 ; that the defendant moved for a new trial ; that such motion was heard and denied, and that judgment was thereupon perfected for $349.79 damages, and $37.43 costs; total, $387.22.

The evidence in the present action being closed, the defendant moved to dismiss the complaint on the grounds:

1. That the supposed judgment record on which this action is brought, does not show any cause of action by the plaintiffs against the defendant.

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2. That the supposed cause of action shown by said judgment record, is not recognized or enforcible by the law of the State of New York.

3. That the plaintiffs were precluded from recovering in this action by the judgment recovered against them by the defendant.

4. That the plaintiffs are liable to the defendant in the full value of the merchandise sold to them by the defendant.

The motion was denied, and the defendant excepted.

The judge found as facts, the facts above stated; and gave judgment for the plaintiffs for the difference between the amounts due on the two judgments. The defendant excepted to the conclusions of the judge, and appealed from the judgment to the general term.

The appeal was submitted without argument, on the fol. lowing points.

P. J. Joackimsen, for Appellant, m

The defendant, a merchant in New York, sold to the plaintiffs, doing business in Wisconsin, a quantity of liquors, for $345.53.

The plaintiffs paid .a portion of the price, and were called on by the' defendant, in person, in Wisconsin, for the balance.

They failing to pay, the defendant brought a suit against them, in Wisconsin, and recovered a judgment for such balance.

The plaintiffs then turned round and sued the defendant in the courts of Wisconsin, for a fraudulent representation as to the quality of the liquors.

And though the plaintiffs had not returned or offered to return the liquors, but had sold them (for what sum does not appear), and though the plaintiffs had not paid the whole price, yet they recovered judgment for the whole amount of the price, with interest.

And, on that judgment, this action is brought.

The question now is : whether the defendant can escape

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a recovery for the amount of that judgment, deducting only the defendant's recovery for the balance of the price ?

He insists that he can, because:

I. The judgment recovered by the plaintiffs in Wisconsin, and on which this action is brought, appears to have been for a matter not actionable in this State. The goods were sold and delivered in this State. It is not alleged that

a. There was an express warranty, or

b. That the goods delivered were unmerchantable, or

c. That the plaintiffs offered to return the goods to the defendant, so as to put all parties back to their original position.

The judgment thus recovered in Wisconsin, could not, therefore, be the ground of an action in this State, because :

First. The courts of this State have jurisdiction only of causes of action recognized by the laws of this State.

Second. The implied promise or debt on the judgment is void, for want of a good consideration.

II. The, judgment recovered by the defendant against the plaintiffs, in Wisconsin, is an estoppel .to this action, because:

a. It was a controversy between the same parties upon a contract.

b. It arose out of and related to the same transaction.

c. Was recovered before a court of competent jurisdiction.

d. In a suit in which the defendants (now plaintiffs) were duly served with process, and had a day to be heard in court.

Under such circumstances, the decision of the court upon the same subject matter is conclusive against the plaintiffs. The plaintiffs’ suit in Wisconsin, against the defendant, was brought after the commencement of the suit and before the recovery of the judgment of the defendant against the plaintiffs, and for that reason the defendant’s judgment could not be pleaded or answered in bar of that. suit.

III. There is no doubt that the defendant delivered his property, of the value of SSSO.YO, to the plaintiffs, at their

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request, which they never returned, but actually consumed, and for which, if the plaintiffs’ claim in this action is1 enforceable, the defendant has never been paid. This amount must necessarily be allowed to the defendant, and forms a good counterclaim.

IY. The judge, at special term, erred in overruling every proposition of fact or of law insisted on by the defendant. The judgment at special term should be reversed, and judgment ordered for the defendant, and for a balance in his favor, against the plaintiffs, with costs.

Mead §■ Taft, for Respondents.

I. The recovery of the judgment, upon which this action was brought, in the State of Wisconsin, and that the court pronouncing it had jurisdiction of the defendant by actual and personal service of process upon him, and by his appearing in and defending the action, are proved by the exemplified copy of the judgment record. (Greenleaf on Evidence, vol. 1, § 504; Hatcher v. Rocheleau, 18 N. Y. R. 86, 90, 94.)

This judgment can only be impeached by showing want of jurisdiction in the court, or fraud; neither of which has been done in this case. (Rocco v. Hackett, 2 Bosworth’s R., p. 579; Greenleaf on Evidence, vol. 1, § 504; Hobson v. Pearce, 2 Kernan’s R., p. 156.) The defendant established no defense to the judgment.

II. The defendant established no other counterclaim Than the one that was allowed.

The goods spoken of in the third division of the answer were paid for, except the balance for which the judgment was recovered before Justice Hinds, and which was allowed as a counterclaim.

The -goods spoken of in the fourth division, are the same goods that are mentioned in the third. Judgment should be affirmed, with costs.

—The judgment upon which this action is brought, was obtained in a court of a sister

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State, upon due notice personally served therein upon the defendant, to defend the same. It is now proposed to enquire into the validity of it, collaterally in • this action, and to assail its foundation by establishing that the cause of action set forth in the complaint in such action-in which the judgment was obtained, was such as could not be sued upon in the courts of this State; in other words, to demur to such complaint. But, as the Constitution of the Federal C-overnment requires full faith and credit to be given in every State to judgments of each State, when jurisdiction has been obtained of the person, the objection is hardly worth noticing. The courts of this State have, it is true, jurisdiction only of causes of action recognized by its laws, but, among them, is a judgment obtained in a sister State. The right of action on a judgment needs neither promise nor consideration to create or support it.

The second objection seems to me equally frivolous. The judgment obtained by the defendant against the plaintiffs, concluded the plaintiffs on nothing except that they owed the price of goods bought; which is perfectly consistent with the defendant’s being liable for damages for misrepresenting their quality or purity. The plaintiffs were not bound to recoup, and did not, but chose to avail themselves of the right of suing for this wrong. The defendant was probably not prevented from availing himself of the recovery of the judgment by him in Wisconsin, if it had been of any avail for the purpose, in answer to the claim of the plaintiffs against him; notwithstanding the latter was sued upon after his suit was begun and before judgment had been obtained, as he could have' set it up by plea puis darrein, or supplemental answer. At all events, it is too late now, after judgment has been obtained against him. I do not see any great hardship in the defendant’s altogether losing the price of adulterated, articles sold as pure ; but that was a question disposed of by the courts of Wisconsin, with which we have nothing to do, except to enable the parties in whose favor judgment was rendered, to enforce it in this State.

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The judgment appealed from must be affirmed, with costs, to the respondents.

Ordered accordingly.