Earl v. Bull

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

The defendants sold to the plaintiffs one hundred hogsheads of bacon, warranting the quality. A suit was brought for the price, and a breach of the warranty set up in defense. This is an action upon the warranty, and the only question is, whether the matter was litigated and determined in the former suit. The complaint, in that case, contained two counts; one upon a special contract for the sale and delivery of the bacon, and the other upon a claim for goods, wares and merchandise sold and delivered. The answer denied the making of the contract, and denied generally the other allegations of the complaint. It was admitted, however, that a contract, differing from that mentioned in the complaint, had been entered into between the parties, and the contract so admitted was set out in the answer, and it was alleged that the quality of the bacon was not in accordance with the terms of the contract. It was further alleged that the question in relation to quality, was submitted to arbitration, and that an award had been made in favor of the defendants—the plaintiffs in this action. The breach of the contract, and the award of the arbitrators, were relied upon as a defense. Evidence was introduced at the trial, upon all the issues presented in the pleadings. The Court instructed the jury that, “ if the plaintiffs, on the day the contract matured, presented their account, and offered to deliver the goods, they fulfilled the contract on their part; and if the defendants did not, within a reasonable time, and within the custom of the trade, make their objection to the article sold, and offer to rescind the contract, they are bound by it, and the plaintiffs should recover.” The jury rendered a verdict for the plaintiffs for the full amount of their demand.

It is well settled that the doctrine of res judicata only applies to matters put in issue upon the record, and directly determined by the Court or jury. It is not sufficient that the point in dispute was raised by the pleadings in a former action; it must have been passed upon and determined, or the judgment in such action cannot be relied upon as a bar. In the present case, we have no doubt that the breach of the warranty [426]might have been relied upon, by way of recoupment, to mitigate the recovery in the former suit; but we are equally clear that it was not available as a complete defense, for which purpose alone it seems to have been set up in the answer, and relied upon at the trial. It is unnecessary to determine whether the answer was sufficient to entitle the plainiffs to recoup the damages resulting from the breach of the contract; we are clearly of opinion that by the instruction of the Court, the whole matter was excluded from the consideration of the jury. They were told that the rights of the parties depended upon other considerations, of which alone they were permitted to enquire. _ That they did not consider any question in relation to the warranty, and could not legally have done so under the instruction, we think does not admit of serious controversy.