Cleary v. Folger

TEMPLE, C. This is the second appeal in this ease: Cleary v. Folger, 84 Cal. 316, 18 Am. St. Rep. 187, 24 Pac. 280. The former appeal was from a judgment of nonsuit, and the judgment was reversed and the cause remanded for trial. In the lower court the defendant amended his answer, adding a claim for recoupment against the demand of plaintiff. On the last trial the defendant proved and the court found that before the time for performance arrived, according to the terms of the contract, plaintiff had notified defendant that he could not and would not complete the purchase or pay anything further on account thereof. The court therefore held that defendant was excused from offering to perform, and had not made default, and had not, therefore, authorized plaintiff to consider the contract rescinded. The evidence justified this conclusion, and, of course, it follows that plaintiff cannot maintain his action.

The appellant contends that certain facts were considered by this court as established on the first appeal, and that it was error to allow such facts to be controverted at the trial, as they had become the law of the case. But in this contention appellant’s counsel entirely misapprehends what is meant by the “law of the case.” That doctrine is merely that when this court has decided that from the facts presented by the record certain legal conclusions follow, such legal conclusions must be accepted by the parties upon a retrial, if the same facts are again established. This will not prevent the par[78]ties, however, from proving an entirely different state of facts upon the retrial, and, in so far as the facts proven are different, the case will not be controlled by the first decision. As the first appeal was from a judgment of nonsuit, which this court held was erroneous, it would necessarily follow that the defendant should then have an opportunity of putting in his case. The former decision was merely that, taking plaintiff’s evidence as true, it made a prima facie case for plaintiff. Bu t plaintiff maintains that the first judgment was not a judgment of nonsuit, because, he says, plaintiff put in evidence a stipulation as to certain facts, in which it was stipulated that it could be used by either party. This, he says, constituted evidence for the defendant, which he claims would prevent a nonsuit and necessitate a judgment on the merits. Conceding the rule to be as claimed, still there is nothing in this contention. All the evidence put in by plaintiff is available to defendant as evidence for him, and it makes no difference whether plaintiff proves his case by testimony or by admissions and stipulated facts. If, when he has put it in, it does not make out his case, a nonsuit is proper. The first judgment was strictly a judgment of nonsuit.