Goodman v. Dam

MR. JUSTICE PLUMMER Delivered the Opinion of the Court.

The defendant had judgment in the trial court, and from this judgment the plaintiff appeals. The judgment went in favor of the defendant by reason of his plea of

res judicata.

The complainant in this action seeks judgment against the defendant for and on account of an assigned claim from L. A. Dunning to the plaintiff, wherein and whereby it is claimed that the defendant was indebted to the plaintiff in the sum of $481.25, in consideration of certain work and labor performed, and money expended by said L. A. Dunning, in and about the repair and upkeep of certain tractors, discs, harrows and other equipment rented by the said L. A. Dunning to the said F. H. Dam. The defendant in this action pleaded a prior judgment involving the same cause of action. The complaint in the prior cause of action is in

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the following words: “Defendant heretofore became indebted to Lew Dunning (assignor of plaintiff) upon an open account, for labor and materials sold and delivered, at the defendant’s special instance and request, in the sum of $427.50.” In the instant action the complaint alleges a payment in the sum of $53.75, which leaves the amount sued for in both actions exactly the same.

While several questions have been presented as to the sufficiency of the pleadings in this action, only one question really possesses sufficient merit to call for an expression of opinion herein, to wit: Whether the two causes of action are identical; that is, whether the basis of the two causes of action is the same, even though the complaints are couched in different allegations.

In the present action the complaint, without any ambiguity or concealment of the true cause of action, alleges that the amount claimed from the defendant is due for and on account of the rental of certain farming machinery. In the prior cause of action the complaint is so worded as not to express the real substance of the action, as it only sets forth that the account constituting the indebtedness is for labor and materials sold and delivered by Dunning to the defendant. In the present action the answer of the defendant pleads the previous action as a bar, and sets forth that the same questions were therein determined as are involved in the present action. Upon the trial of the instant action, there being no question as to the claim of the indebtedness being based upon an alleged rental of certain farming machinery, the only question tried by the court was as to what was really involved in the prior action. To determine this issue the court admitted the judgment-roll, and also the reporter’s transcript of the testimony taken in the first action. From this testimony it appears without any conflict that while the complaint in the first action was worded as we have herein stated, the rental of the farm machinery was involved and was the basis of the suit. To show this, we have only to quote a short excerpt from the testimony, to wit": (Testimony of Dunning, the assignee of the plaintiff in both, actions.) “By Mr. Harter: Q. Now, state whether or not at any time you rented a tractor or farming machinery to F. H. Dam?