Rodgers v. Russell

11 Ala. 456

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

ORMOND, J.

It is very certain that the fact that Russell passed off the note to Gray, did not exonerate Rodgers from the performance of his contract, if the noté was in fact not current, and returned again upon Russell. How is the case altered by the litigation between him and Gray, to which Rodgers was neither party or privy. If in that suit Gray had cast Russell, assuredly that judgment would have been no evidence against Rodgers, that the bill was not current ; and for the same reason, it is not evidence for him. The case of Lea & Hopkins, 6 Wheat. 109, merely affirms the well known principle, that a judgment or decree, upon the same matter, between the same parties, cannot again be brought in litigation.

It is however urged, that the taking back of the bill by Russell, from Gray, after he had obtained a judgment, affirming that the note was current, was a purchase of it from Gray, as the judgment, whilst it remained in force, was a satisfaction. There would be some force in this objection, if it were clear that .the judgment in favor of Russell, was irreversible. It may be that he became satisfied, it was erroneous, and the result of this case would seem to indicate, that it was, and that he did not wish to risk the costs of further litigation with Gray. In that aspect, he certainly had the right to abandon the judgment he had obtained, and take back the note, and call on Rodgers to perform his contract,by giving him current money for it. We cannot therefore assume from the fact that he obtained a judgment against Gray, that he was exonerated from liability, so as to raise' the presumption that he had abandoned the contract with Rodgers, and made a new contract with Gray.

Let the judgment be affirmed.