Assumpsit. Plea actio non, reciting a former judgment. Replication precludi non, because the claim, although made by way of set-off in the former action, was, in fact, withdrawn, and was never submitted to the court nor adjudicated. Held, that the replication was a good answer to the plea, and could be sustained by evidence decors the former record. When a claim to which a former judgment is pleaded is one of several distinct demands at issue in the former action, extrinsic evidence is admissible to show that the claim, though set out in the former record, was not submitted for adjudication and hence was not covered by the judgment.
DURFEE, C.J.
This is assumpsit for damages for breach of contract. The defendant pleads in bar of former judgment recovered in the Supreme Court of the State of New York, in an action in which the parties were reversed, and in which the plaintiff set up the demand now in suit by way of set-off or counter claim. The plaintiff replies that the cause of action is not the same as that which was then determined. On trial it appeared, by the record of the former judgment, that the case in New York had been referred to and tried by a referee, and that the judgment, following his report, was for the full amount of the then plaintiff's claim. The record, however, did not show any withdrawal of the counter claim, nor did the referee's report contain any statement from which it could be inferred that the counter claim was not submitted to him for adjudication. The plaintiff offered to prove by deposition that in point of fact the counter claim was not submitted, but was withdrawn, and that the referee decided without reference to it. The defendant objected to the testimony. The court ruled it out, being of opinion that it was to be conclusively presumed that all matters at issue on the record were adjudicated. The plaintiff petitions for a new trial for error in the ruling.
It is perfectly well settled that when the pleadings are so general that it is uncertain what were the particular causes of action, then resort may be had to extrinsic evidence to show what they were, in order to show what was adjudicated. Many of the cases cited for the plaintiff are of that kind. The case at bar belongs to a somewhat different class. Here the demand in suit was specially put in issue in the former action, and the question is, whether, having been so put in issue, extrinsic evidence is admissible to show that in point of fact it was not litigated and consequently not adjudicated. On the jury trial such evidence was offered and ruled out.
We are satisfied that the ruling was erroneous. The decisions are very uniformly to the effect that when the cause of action on which the former judgment was recovered is entire and indivisible, then the estoppel extends to the whole, and it cannot be shown that any part was withheld from adjudication; but when there is a plea of former recovery, and it appears that the demand to which it is pleaded is one of several distinct demands which were at issue in the former action, then it is held that extrinsic evidence is admissible to show that the particular demand in suit, though it may have been specifically set out on the record, was not in fact submitted for decision, and so is not included in the former recovery, which, it is said, is only prima facie, not conclusive, evidence does not contradict the record; it merely explains it. 2 smith Lead. Cas. *669; Seddon v. Tutop, 6 Term Rep. 607; Preston v. Peeke, El., B E. 336; Post v. Smilie, 48 Vt. 185; Wright v. Salisbury, 46 Mo. 26; Burwell v. Knight, 51 Barb. S.C. 267; Phillips v. Berick, 16 Johns. Rep. 136; Colwell v. Bleakley, 1 Ab. Ct. App. Dec. 400; Sawyer v. Woodbury, 7 Gray, 499; Dunlap v. Glidden, 34 Mc. 517; Baker v. Stinchfield, 57 Me. 363; Supples v. Cannon, 44 Conn. 424.
Petition granted.