Jaffe v. Skae

By the Court, Wallace C. J.: When this cause was before us on a former appeal, the judgment and order denying a new trial were reversed and in the opinion then delivered, we said: * * * “Upon looking into the record we observa no substantial conflict in the evidence, and we think that it established the case of [543]the plaintiff.” The case having been again tried in the Court below and judgment rendered for the defendant, this appeal is taken from the judgment, and it is insisted by the appellant that, upon the law of the case, as settled here upon the former appeal, the plaintiff is entitled to judgment.

1. It has always been the settled rule in this Court that a decision rendered here upon facts appearing in the record, in which the legal effect of those facts is declared, is, in all subsequent proceedings in the case, and so long as the facts themselves appear without material qualification, a final adjudication of the rights of the parties, from which the Court can not depart, nor the parties relieve themselves. This rule was laid down here in the early case of Dewey v. Gray (2 Cal. 374,) which, in this respect, adopted the views of the Supreme Court of the United States, enunciated in Washington Bridge Co. v. Stewart et al. (3 How. 413), and the rule itself has been since uniformly maintained in this Court.

2. It is insisted, however, by the respondent, that the facts now appearing are, within the sense of the rule referred to, materially different from those appearing on the first appeal in this: that it now appears “that at the time the appellant made his contract with the respondent, April 28, 1869, he had no title whatever to the leasehold and right of renewal claimed to be owned by him, he having previously assigned both said lease and covenant of renewal to Birmingham and Bosenfeldt.” But it also appears that in point of fact the assignment to these last named persons was not absolute, but only by way of mortgage security for money loaned to the appellant, and that the respondent was cognizant of the facts when he entered into the agreement of purchase, the appellant undertaking to obtain a re-assignment from Birmingham and Bosenfeldt. The title to the leasehold, which was the subject of sale, had not, therefore, passed from the appellant at the time of the making of the contract with the respondent. In January, 1870, the appellant obtained from Birmingham and Bosenfeldt a release of their mortgage lien in [544]