Molen v. Bussi

California Court of Appeal Nov 23, 1931 No. Docket No. 7809.Published

Before: Tyler

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Holding. The court held that a prior judgment did not bar the current action on a promissory note because the claim was not adjudicated on the merits in the previous litigation, as the trial court had excluded it for being outside the scope of the issues.

Issues

Whether a prior judgment in a separate action involving different parties and issues constitutes res judicata regarding a promissory note claim.
Whether a claim excluded from a prior action because it was not germane to the issues can be maintained in a subsequent suit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Where a matter is pleaded as a set-off or counterclaim, if it is for any reason not allowable as such in the action and is excluded and not taken into consideration in rendering judgment, an action may afterward be maintained thereon.”

“Where a former adjudication is pleaded it must appear that the adjudication was on the merits.”

TYLER, P. J.

Action upon a promissory note.

Judgment went in favor of plaintiff and defendants appeal. At the trial defendants pleaded in effect that the consideration for the note had failed; they also urged the defense of

res judicata.

It is here claimed that the latter defense should have been sustained and judgment should have been rendered in favor of defendants.

The plea invoked is a bold attempt to defeat the payment of an honest obligation. The facts show that Henry E. Molen, plaintiff in the present action, and H. B. Kennedy were at one time partners in a garbage business. Kennedy sold out his interest to Molen and the latter then became the sole owner thereof. Subsequently Molen sold the same to Battista and Stella Bussi. The Bussis paid Molen $200 cash and executed a promissory note for the sum of $1300, the balance of the purchase price. This is the promissory note which forms the basis of this action. Upon the sale the purchasers went into immediate possession of the business and ever since have continued to operate the same. Kennedy, who formerly owned the property with Molen, subsequently asserted a claim against the Bussis and brought an action based thereon. This action was entitled

Kennedy

Bussi.

Molen was made a defendant in this action. As it .proceeded, Molen filed a cross-complaint against his co-defendants, the Bussis, upon the promissory note given by them as part payment for the business. The answer to the cross-complaint, filed on behalf of the Bussis, admitted the sale of the business and the execution and delivery of the note, but set up as a defense the fact that Kennedy was asserting a claim to the business to which Molen had

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warranted title. Upon the trial of that action the Bussis objected to a consideration of the cross-complaint filed by Molen upon the ground that the matters therein set forth did not constitute a proper subject for a cross-complaint and could not be determined in that case. The trial court sustained this contention and refused to receive any evidence on the cross-complaint based upon the promissory note. An action had also been filed by the Bussis against Kennedy to quiet their title to the business and to enjoin Kennedy from interfering therewith.

Molen v. Bussi

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TYLER, P. J.

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