Williams v. MacDonald

OLNEY, J.

This is an action to recover the reasonable value of dental services rendered the defendant by the plaintiff.

The complaint alleges in brief that the plaintiff is a licensed and practicing dentist; that at the request of the defendant, and upon hef promise to pay the

reasonable value

thereof, he performed certain dental work for her, that such work was of the reasonable value of $550, and that plaintiff has not been paid.

The answer of the defendant denied that the work was done at her request or that it was of any value. It also set up that the plaintiff had brought a previous action against the defendant on the same demand and that after trial final judgment had gone against the plaintiff.

[547]

On the trial in this action the judgment-roll in the former action between the parties was introduced in evidence. It showed that the plaintiff had commenced an action to recover, not the reasonable value of, but the

agreed price

for the same dental work, that the defendant answered denying that any contract was made or that the work was of any value, that a trial was had, and that judgment was rendered in favor of the defendant.

Upon this showing and without evidence other than t the judgment, the lower court directed judgment for the defendant in the present action. Prom this judgment the plaintiff appeals.

The plaintiff contends that the first action was one upon a contract for an agreed price, that the second and present one is upon a contract for the reasonable value of the work, that the two causes of action are not the same, and that the judgment against the plaintiff, in the first is not a bar to the maintenance of the second. This is the plaintiff’s sole contention.

If the fact were that judgment went against the plaintiff in the first action on the sole ground that there was no contract for the work at an agreed price, or even if the fact were that the judgment might have gone against him on that ground alone and the judgment-roll did not show the contrary, it might well be that the plaintiff’s contention would be correct. A judgment in order to operate strictly as a bar to a subsequent action must have gone to the merits of the subsequent action. This is the full extent of the doctrine of such cases as