Etheridge v. Osborn

Headnote

A verdict and judgment thereon, on a fact or title distinctly put in issue, may be pleaded by way of estoppel in another action between the same parties or their privies, in respect of the same fact or title.

In England, if a plea begins as an answer only to part of the declaration, and is in truth only an answer to part, the plaintiff cannot demur, but must take judgment for the part unanswered as by nil dicit. Here, however, it is otherwise; and to such plea a general demurrer will be sustained.

The plaintiff declared in indebitatus assumpsit, for the use and occupation of certain premises, viz. a race-way, water, and water privileges, laying the indebtedness on the first day of May, 1831, and claiming the sum of $200. The declaration also contained a count upon a quantum meruit, for the use and occupation of the same premises. The defendant pleaded non-assumpsit and a specialpha, to which the plaintiff demurred. Attached to the demurrer books presented to the court, by stipulation between the parties, was a bill of particulars, in which the plaintiff claimed to recover for the use and occupation by the defendant of certain premises, demised to him by the plaintiff for the space of two years, commencing on the first of April, 1829, and ending on the first day of April, 1831, for which the plaintiff claimed to recover $75 per annum. The defendant, in his special plea, said that the plaintiff ought

not to be admitted to aver in his declaration, that any thing was due or became due to him from the defendant, for or by reason of the use and occupation of the premises, so far as the defendant is alleged in the declaration to have used and occupied the same, at any time previous to the first day of April, 1830, because, he said, that in the term of June, 1829, of the court of common pleas of the county of Herkimer, he, the defendant, impleaded the plaintiff, in an action of replevin, for taking and detaining of certain goods and chattels; that the plaintiff appeared in such suit, and avowed the taking of the said goods and chattels as a distress for rent accrued upon certain premises, due on the first day of April, 1829, under and by virtue of a demise of the said premises from the plaintiff to the defendant, for the term of ten years from the 15th November, 1825, reserving an annual rent of $75 ; and because, on the first day of April, 1829, the sum of $75 was due for the rent of the premises for the space of one year, ending on that day, he well avowed the taking of the goods, &c. and prayed a return, &c.; that to the said avowry, he, the defendant, pleaded that the plaintiff ought not to have avowed, &c. because, on the 27th November, 1825, he, by a certain article of agreement, demised to the defendant a certain mill lot, for the purpose of erecting a saw-mill thereon, with certain privileges thereto appertaining, for the term of ten years, subject to an annual rent of $75 ; that in, and by the said article of agreement, the plaintiff engaged and bound himself, during the summer of 1826, to dig a race-way from the West Canada creek, to and through the lot demised to the defendant, so deep that the water therein should be four feet in depth, when the water in the West Canada creek should be at its ordinary height; that the plaintiff, notwithstanding, did not, before or during the summer of 1826, or at any time previous to the putting in of the plea of the defendant, dig the race-way of the depth aforesaid; and that after alleging those facts, he averred in his plea that the use and benefit of the demised premises depended upon the úse and enjoyment of the raceway so stipulated to be dug by the plaintiff, and which he had omitted to dig; concluding with a verification and prayer of judgment. The defendant then further alleged in his

special plea, put in by him this suit, that to the plea of him, the defendant, to the avowry of the plaintiff, the plaintiff replied, admitting the demise set forth in the plea, and the covenant on his part to dig the race-way, and alleging that he had fully performed; traversing that the use and enjoyment of the demised premises depended upon having in the race-way water to the depth of four feet, when the water of the West Canada creek was at its ordinary height: concluding to the country with a similiter. That, upon the issue thus joined, such proceedings were had, that after-wards, to wit, in the term of February, 1831, of the court of common pleas of Herkimer, the issue was tried by a jury of the country, who, on their oath, said that the plaintiff had not performed his covenants in the article of agreement specified, and that the use and benefit of the premises demised to the defendant did depend upon the enjoyment of, and having in the race-way, specified in the article of agreement, water to the depth of four feet, when the water of the Canada creek was at its ordinary height; and that the sum of $75, claimed by the plaintiff as due for rent on the first day of April, 1829, was not due and in arrear from the defendant to the plaintiff; and they assessed the damages of the plaintiff in that suit (the defendant here) at six cents, and his costs at six cents; and that upon such verdict, judgment was rendered for the now defendant. The defendant then averred that the parties and the premises were the saíne in the two suits, and that this action is brought for a subsequent occupation and continuation of possession of the same premises under the same demise; that the plaintiff did not, on the first day of April, 1829, dig or cause to be dug the said race-way of the depth of 4 feet( nor hath he at any time since that day, and previous to the first day of April, 1830, opened or dug the same; concluding with a verification and prayer of judgment, if the plaintiff ought to be admitted to aver that any thing is due to him from the defendant, for the use and occupation of the premises by the defendant, at any time on or before the first day of April, 1830. To this plea the plaintiff demurred.

insisted that the special plea is. p,acj5 jn being an answer only to part of the declaration, and fact professing to be answer only to part, 20 John. R. 204 Wendell, 5 8 id. 615 ; and he contended, further, that if the matter set forth in the plea had been pleaded as a full answer to the declaration, it w-ould not in this case have been, a bar to the plaintiff’s right to recover for the subsequently accruing rents, as the rights of the parties 'were liable to be changed, by a change of circumstances in reference to the covenants contained in the article of agreement. 3 Cowen, 120. 4 id. 559. 3 Bast, 353. That the defect in the plea was matter of substance, and not of form, and therefore the subject of a general demurrer, he cited 3 East, 346.

cited 1 Chitty’s PI. 509,1 Saund. 28¡ n. 1, 2, 3, and Clarkson v. Lawson, 6 Bingh. 587, to show that when one plea has been pleaded to the whole declaration, the defendant may put in a second plea, applicable only, to a portion of the cause of action, where the matter of the action is severable or divisable.

said that the practice of our court was-different in this respect from the K. B., and relied upon the-cases by him before cited.