Hardy v. O'Pry

59 So. 73, 102 Miss. 197

• Court: Mississippi Supreme Court
• Decided: March 15, 1912
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

Appellee instituted this suit in the court below to recover of appellant a sum of money alleged to be due her for stenographic services rendered by her to him. Prom .a judgment in her favor this appeal is taken.

One of appellant’s defenses was that appellee’s claim was res judicata. A demurrer to his plea setting up this defense was sustained, and it is this action of the court below that we are called upon to review. Appellee’s declaration contained two counts; the first setting up an express, and the second an implied, contract to pay for .services rendered. Appellant was one of the commissioners who assisted the legislature in compiling the Code of 1906. Appellee in her former suit sought to recover damages from appellant for the alleged breach of a, contract to assist her in obtaining from the legislature of the state of Mississippi an appropriation to her of the sum of four hundred and twenty dollars to compensate her for stenographic work done for him by her in aid of his work as code commissioner. The declaration in that suit was demurred to on the ground that the contract, the breach of which was alleged, was “against the public policy of the state and void.” This demurrer was sustained, and judgment final rendered for appellant.

In order that the judgment rendered in the first suit may constitute a bar to the second, the cause of action in both suits must be.the same. The usual test for determining whether the cause of action in the two suits is the same is to ascertain whether the evidence necessary to maintain the one would authorize a recovery in the other. If not, the prior judgment is hot a bar to the second. A mere glance at the two declarations here under consideration is sufficient to demonstrate that the evidence necessary to support the one would furnish no-basis for recovery upon the other.

But it is stated that appellant has alleged, and appellee, when testifying on the merits, has admitted, that she had only one contract with appellant relative to the work to be performed by her; that, consequently, the whole controversy could have been determined in one suit, and, therefore, is res judicata lt is true that those things which might have been litigated, as well as those things actually litigated, in the first suit are res judicata; but this means those things “involved in the record of the former case, and which, being so involved, might have been litigated and decided,” etc. Hubbard v. Flynt, 58 Miss. 266. And, moreover, when the cause of action in the two suits is different, only those things are concluded by the first judgment which were actually in issue in the suit in which it was rendered. Scully v. Lowenstein, 56 Miss. 652; 23 Cyc. 1297; 24 Am. & Eng. Ency. Law (2 Ed.), 784.

The fact that appellee had only one contract with appellant can, therefore, under the allegations of her declarations, have no bearing on the question of res judicata. It merely shows that she had no such cause of action as it set up in one of her declarations.

Affirmed.

Suggestion of error filed and overruled.