Soule v. Ritter
Before: Cope, Field, Norton
Synopsis
The doctrine of previous decisions as to the conclusiveness, on a second appeal, of a decision upon points of law made by this Court in the same case on a former appeal, recognized and applied.
In the opinion upon a former, appeal of the case at bar, the Supreme Court used the following language: “ If the contractors did the work (meaning certain extra work) with the knowledge of Ritter, and after Ritter’s mortgage, and Ritter interposed no objection, then we think, under the contract between . Howard, Miller and Dawes, it would, in equity, be a charge upon the mortgaged property. Otherwise, it would not,” and reversed the judgment, and remanded the cause “for the purpose of determining this sole question according to the principles of this opinion.” Held, that on the second trial, the knowledge of Ritter was a fact to be litigated and determined, as well as whether or not he interposed objections.
And it further appearing that, this Court had before it, on the former appeal, all facts necessary to determine the question of constructive knowledge on the part of Ritter: Held, that the question for determination upon the new trial awarded was as to his (Ritter’s) actual knowledge.
Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. This action has been heretofore twice before this Court, under the title of Soule et al. v. Dawes et al. Upon the last occasion, a question was presented as to certain “ extra” work, as to which the Court said: “ If the contractors did the work (meaning the “ extra ” work) with the knowledge of Ritter, and after Ritter’s mortgage, and Ritter interposed no objection, then we think, under the contract between Howard and Wilber and Dawes, it would in equity be a charge upon the mortgaged property. Otherwise, it would not.” The Court then reversed the judgment, and remanded the cause “ for the purpose of determining this sole question according to the principles of this opinion.”
[524]Upon the retrial under this order the referee found: “ That at the time said extra work was ordered and done, the said Ritter had no knowledge that the same was ordered, nor that the same was being done; ” and a decree was accordingly entered to the effect that the claim for said extra work was not a lien upon the premises as against the mortgage of Ritter.
The plaintiff has appealed and insists. 1. That the only matter to be tried was whether Ritter objected to the extra work.
This is claimed, upon the ground that the Supreme Court had the fact before it that Ritter knew the terms of the contract, and which provided for extra work, and that he dealt with the property during the progress of the work, and hence was chargeable with notice of any deviations from the specifications of the contract, and of course with knowledge that extra work was done ; and therefore, that the only matter that the Supreme Court could have intended should be tried, was whether Ritter objected to this extra work. But the language of the opinion is too simple and direct to admit of this construction. It is impossible to suppose the Court to have been so negligent as to have used the language it did, if the only point it •intended to have inquired into was simply whether Ritter objected. If this had been all that was intended, there could have been no difficulty in so saying; and it certainly would have been so said distinctly in a decision reversing the case, on the main points, because the Court below had misinterpreted a former decision.
2. That the finding was against the evidence, as to the fact of knowledge by Ritter that the extra work was being done.
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