1. Where the record of a former suit is offered in evidence, the
declaration setting out a special contract, but not saying whether
it was written or parol, and where jurors who were empanelled in
the former suit are brought to testify that the contract declared
on in the second suit was the same contract that was in controversy
in the former one, and was passed on by them, testimony may be
given on the other side that the contract was a parol one, so as to
let in a defense of the statute of frauds.
[In the District of Columbia, in which the suits in this case
were brought, the British statute of frauds, providing that "no
suit shall be brought to charge any person upon any agreement that
was not to be performed in one year unless there was some
memorandum or note in writing of the agreement" was in force. And
the fact that the contract declared on was a parol one, and so
within the statute, was one of the matters meant to be relied on by
the defendants in the second trial.]
2. A contract where performance is to run through a term of
years, but which, by its tenor, may be defeated at any time before
the expiration of the term --
ex. gr., a contract to pay
for a right to use an invention on a certain boat so much a year
during the term of a patent having twelve years yet to run,
"
if the said boat should so long last," is within the
clause of the statute quoted in the preceding paragraph.
In this case, which had become somewhat complicated by several
trials below and which had been in this Court on error more than
once, and was now returned with a mandate for a
venire de
novo, the court makes two observations over and above the
points above stated as adjudged:
(i) That the secret deliberations of the jury or grounds of
their proceedings while engaged in making up their verdict are not
competent or admissible evidence of the issues or finding, but that
their evidence should be confined to the points in controversy on
the former trial, to the testimony given by the parties, and to the
questions submitted to the jury for their consideration, and that
then the record furnishes the only proper proof of the verdict.
(ii) That where the extrinsic proof of the identity of the cause
of action is such that the court must submit the question to the
jury as a matter of fact, any other matters in defense or support
of the action, as the case may be, should be admitted on the trial
under proper instructions.
This was a suit brought in the Supreme Court (the former circuit
court) of the District of Columbia to recover damages under a
special contract set forth in the declaration.
The contract, in substance, was, that on the 18th of June, 1844,
the plaintiffs below, Sickles & Cook, and the Washington,
Page 72 U. S. 581
&c., Steam Packet Company, the defendants, agreed that
Sickles & Cook should attach, for use, to a steamboat owned by
the company, the Sickles cut-off, a certain patented contrivance
which was designed to effect the saving of fuel in the working of
steam engines; and that, in consideration thereof, if the said
cut-off should effect a saving in the consumption of fuel, the
company would use it on their boat
during the continuance of
the said patent, IF the said boat should last so long, and
that they would, for the use of the cut-off, pay to the plaintiffs,
weekly, three-fourths of the value of the fuel saved.
The
patent had, at the date of the alleged contract, yet twelve years
to run. The declaration set forth further that it was agreed
between the parties that the saving of the fuel caused by the use
of the said cut-off should be ascertained by taking two piles of
wood of equal quantity and burning one pile without and the other
with the use of the cut-off, and thus to ascertain how much longer
the boat would run, under the same circumstances, with the use of
the cut-off than without, and that the proportion of savings as
agreed upon above should be paid by the defendants. It alleged
finally that this experiment had been fairly made, and showed a
saving of fuel by the use of the cut-off of thirty-four percent
The plaintiffs accordingly claimed the value of three-fourths of
the fuel thus saved, between certain dates specified.
The defendants pleaded the general issue.
On the trial, the plaintiffs, to support the issue, gave in
evidence the record of a former trial between the same parties on
the same contract as alleged, for payments due when the writ in
that case was issued, in which trial a verdict and judgment had
been rendered in their favor.
The declaration in the record of this former trial contained
four counts:
1. A special count on the contract, corresponding in all
respects with that set out in the declaration in the present
suit.
2. A common count for compensation for the use of the cut-off by
the defendants on their boat before that time had and enjoyed, and
for such an amount as it was reasonably worth.
Page 72 U. S. 582
3. A common count for money had and received; and
4. A special count on a contract in substance like the first,
with the difference hereinafter stated. It recited that in
consideration the plaintiffs had before that time attached the said
Sickles cut-off to the engine of the defendants' boat, and had
agreed that they should have the use of it during the continuance
of the patent right, if the boat should last so long, they, the
defendants, undertook and agreed to pay the plaintiffs
three-fourths of the value of the fuel saved by the use of the
cut-off; that a large quantity of the fuel, to-wit, one thousand
cords of wood, of the value of $2,500, had been saved, yet the
defendants, not regarding their promise &c., have refused
&c. The difference between this and the first count consists
mainly in the omission of any agreement to ascertain the saving of
fuel by the experiment.
To the declaration in this former suit, whose record was thus
offered in evidence, the defendants had pleaded the general
issue.
It should be here mentioned that this suit had been in this
Court before. It was here in 1860. [
Footnote 1] On a trial from the result of which the writ
of error then came, a record of a former trial had also been
offered in evidence, apparently the same offered in the suit to
whose result the present writ was taken.
The record offered in that previous trial contained a
declaration having two counts upon the contract, with the common
counts, a plea of the general issue, a general verdict for the
plaintiffs
on the entire declaration, and a judgment on
the first count -- a count similar to the counts in the declaration
in the suit then pending.
Besides this testimony of the contract, the plaintiffs proved on
that previous trial the quantity of fuel used in running the boat,
and relied upon the rates as settled to determine their demand, and
insisted that the defendants were estopped to prove there was no
such contract, or to disprove any
Page 72 U. S. 583
one of the averments in the first count of the declaration in
the former suit, or to show that no saving of the wood had been
effected; or to show that the so-called experiment was not made
pursuant to the contract, or was fraudulently made, and was not a
true and genuine exponent of the capacity of the said cut-off; or
to prove that the said verdict was in fact rendered upon all the
testimony and allegations that were submitted to the jury, and was
in point of fact rendered, as by the record it purported to have
been, upon the issues generally, and not upon the first count
specially.
The circuit court adopted these conclusions of the plaintiffs
and excluded the testimony offered by the defendants to prove these
facts. On the matter's coming here in 1860, by exceptions in that
second suit, this Court, in 24 Howard, [
Footnote 2] remarked upon the exclusion of this testimony
as follows:
"The record produced by the plaintiff showed that the first suit
was brought apparently upon the same contract as the second, and
that the existence and validity of that contract
might
have been litigated. But the verdict might have been rendered upon
the entire declaration, and without special reference to the first
count. It was competent to the defendants to show the state of
facts that existed at the trial with a view to ascertain what was
the matter decided upon by the verdict of the jury. It may have
been that there was no contest in reference to the fairness of the
experiment or to its sufficiency to ascertain the premium to be
paid for the use of the machine; or it may have been that the
plaintiffs abandoned their special counts and recovered upon the
general counts. The judgment rendered in that suit, while it
remains in force and for the purpose of maintaining its validity,
is conclusive of all the facts properly pleaded by the plaintiffs;
but when it is presented as testimony in another suit, the inquiry
is competent whether the same issue has been tried and settled by
it."
Considering, therefore, that the circuit court had erred in
holding the Packet Company estopped by the proceedings
Page 72 U. S. 584
in the first suit from any inquiry in respect to the matters in
issue, and actually tried in that cause, this Court reversed the
judgment given against it, and the case went down for trial a
second time -- the trial, namely, after which to present writ of
error was taken.
On this new trial, the plaintiffs called several of the jurors
who had been empanelled in the former trial to give evidence of the
testimony then given and also as to the matters in contest before
the court on that trial, the purpose in introducing this extrinsic
evidence having been to prove such facts as, in connection with the
record, would show that the same contract was in controversy in the
second suit and had been conclusively adjudged in their favor.
[Many of these jurors, it may be remarked, while stating
the
particular grounds on which they found the verdict, and
speaking of a
contract that was before them, did not all
speak so definitely as to the terms of the contract as to make it
easy to say whether they described such a one as was set forth in
the first count or such a one as was set forth in the last
count.]
When the plaintiffs rested, the defendants offered a competent
witness to prove that the only contract given in evidence on the
former trial was by parol,
and not reduced to writing, the
purpose of this testimony having had obvious reference to a
provision of the statute of frauds, in force in the District of
Columbia, the words of the statute being:
"That no suit shall be brought to charge any person upon any
agreement
not to be performed in one year, unless there
was some memorandum or note in writing of the agreement,"
&c.
The evidence thus offered was objected to and excluded by the
court. The defendants offered to prove further that the contract
was by parol,
and to be performed at the time stated in the
declaration, which testimony was also objected to, and
excluded, except as to the latter branch. The questions growing out
of this exclusion of evidence were now before this Court on a bill
of exceptions for review.
Two questions were accordingly raised here:
1. Whether the evidence as above mentioned was rightly
excluded;
Page 72 U. S. 585
2. Whether the contract which it was sought to show was in issue
in the former suit was now to be regarded as valid, this question
being suggested, of course, by the above-quoted section of the
statute of frauds.
Page 72 U. S. 590
MR. JUSTICE NELSON delivered the opinion of the Court.
When this case or one of the class was formerly before this
Court, [
Footnote 3] in which
the record of the former recovery was in evidence, it was claimed
that, without any extrinsic evidence, it concluded the defendants
from again denying the existence of the contract or from disproving
any other of the averments in the first count of the declaration,
and it had been so ruled by the court below.
This Court, when the case came up on error, agreed that the
record was properly admitted as evidence of the former trial
between the parties, but held the pleadings, verdict, and judgment
did not furnish the necessary proof to show that the contract in
controversy in the suit then on trial had been before agitated and
conclusively adjudicated in the former trial in behalf of the
plaintiffs; and that the verdict had been rendered upon the entire
declaration, and without special reference to the first count.
The record, with the pleadings and verdict, furnished evidence
that the same matters might have been litigated on that trial, and
afforded ground for the introduction of extrinsic evidence to show
that the same contract had been in contest before the court, and
had been referred to the decision of the jury, but nothing more.
For this reason, the judgment was reversed and a new trial
ordered.
Taking this view of the application and effect of the record of
the former trial, the plaintiffs introduced in this case extrinsic
evidence, and have endeavored to prove the necessary facts which,
in connection with the record, would lead to the conclusion that
the same contract was in controversy in the former suit and had
been conclusively adjudged in their favor. But this extrinsic
evidence was open to be controverted on the part of the defendants.
As the record
Page 72 U. S. 591
itself did not furnish evidence of the finding of the existence
or validity of the contract in the former suit, and hence extrinsic
proof was required to this effect, it was of course competent for
the defendants to deny and disprove both, as in so doing they did
not impeach the record, but only sought to disprove the evidence
introduced by the plaintiffs.
The rejection of this evidence, therefore, offered by the
defendants on the trial was error. Whether or not the contract, as
proved on the former trial, rested in parol or was in writing was
material. If in writing, there could be no controversy in fact in
respect to its terms or stipulations, and its construction and
legal effect belonged to the court to determine. If it rested in
parol, its terms and conditions depended upon the extrinsic proof,
and hence the materiality of the first question put to the witness
as preliminary to further proof. It was important to settle the
terms of the contract in evidence on the former trial in order to
determine whether it was the same as the one then in controversy,
and, resting in parol, these terms depended very much upon the
testimony in the case.
There is another view in this branch of the case that must be
noticed. As we have seen, the declaration in the former suit
contained four counts, to which the general issue was pleaded, and
a general verdict for the plaintiffs. The first and fourth counts
set up two different special contracts relating to the same subject
matters, and which constituted the cause of action between the
parties. Now the extrinsic evidence furnished on the part of the
plaintiffs as to the former trial and the grounds of proceeding
therein, tended to prove either court and was sufficient to have
justified the jury in finding either contract. These contracts, as
thus set forth, were identical with the exception of the agreement
to settle the proportion of fuel saved by an experiment, which had
been made, and resulted in the saving, by the use of the cut-off,
of three-fourths of the fuel as used by the old throttle valve. The
jury, therefore, might have found in favor of the plaintiffs on the
contract as set forth in the fourth count, even if they disbelieved
the proof of the agreement
Page 72 U. S. 592
as to the mode of settling the proportion of fuel saved. Many of
the jurors called and examined speak of a contract between the
parties in respect to the use of the Sickles cut-off, but so
indefinitely it is impossible to determine whether the testimony
related to the one set out in first or fourth counts, and no
attempt was made to distinguish between the one or the other on the
trial.
As we understand the rule in respect to the conclusiveness of
the verdict and judgment in a former trial between the same parties
when the judgment is used in pleading as a technical estoppel, or
is relied on by way of evidence as conclusive,
per se, it
must appear by the record of the prior suit that the particular
controversy sought to be concluded was necessarily tried and
determined -- that is, if the record of the former trial shows that
the verdict could not have been rendered without deciding the
particular matter, it will be considered as having settled that
matter as to all future actions between the parties, and further,
in cases where the record itself does not show that the matter was
necessarily and directly found by the jury, evidence
aliunde consistent with the record may be received to
prove the fact; but even where it appears from the extrinsic
evidence that the matter was properly within the issue controverted
in the former suit, if it be not shown that the verdict and
judgment necessarily involved its consideration and determination,
it will not be concluded. [
Footnote
4]
In view of this doctrine, it is quite clear that the record of
the former trial, together with the extrinsic proofs, failed to
show that the contract in controversy in the present suit was
necessarily determined in the former in behalf of the plaintiffs.
We agree, if the declaration had contained but the first count,
which had set out the contract in controversy in the present suit,
the effect of the judgment would have been different. The verdict
of the jury then could not have taken place without finding the
existence and validity
Page 72 U. S. 593
of the contract. But as we have already shown, the record and
evidence on the former trial are different, and tend to a different
conclusion.
Some of the jurors in the former trial were permitted to testify
as to the particular ground upon which they found the verdict. This
testimony was not objected to, and therefore is not available as
error here. But it is proper to say that the secret deliberations
of the jury or grounds of their proceedings while engaged in making
up their verdict are not competent or admissible evidence of the
issues or finding. The jurors oftentimes, though they may concur in
the result, differ as to the grounds or reasons upon which they
arrive at it.
The evidence should be confined to the points in controversy on
the former trial, to the testimony given by the parties, and to the
questions submitted to the jury for their consideration, and then
the record furnishes the only proper proof of the verdict.
[
Footnote 5]
There is another suggestion also it may be proper to make,
growing out of the rule, now very general both in the federal and
state courts, to admit the record of a former trial as evidence to
conclude a party from agitating the same matters in a second suit,
and that is where the extrinsic proof of the identity of the cause
of action is such that the court must submit the question to the
jury as a matter of fact; any other matters in defense or support
of the action, as the case may be, should be admitted on the trial,
under proper instructions. For if the jury should find against the
conclusiveness of the former trial, then this additional evidence
would not only be material but constitute the whole of the proof on
which the cause of action or defense must rest. If the extrinsic
evidence should be so conclusive that the court could properly hold
the record to be conclusive, the trial would, of course, be at an
end so far as
Page 72 U. S. 594
the matters embraced therein were identical with those in
controversy. But if not so conclusive and the question must be
submitted to the jury, then the record and evidence in respect to
the former trial would constitute but one of the grounds relied on
before the jury in support of the cause of action or in defense,
and be entirely consistent with any other grounds for the
maintenance or defense of the suit in the possession of the
parties. This must be so for the reason that if the trial should in
the case contemplated be confined to the issue growing out of the
former trial and the jury should find against its conclusiveness,
nothing would be determined. The former trial therefore, when its
conclusiveness must be submitted to the jury, can be regarded only
as a preliminary question, and the merits, independently of this
question, should be heard and tried.
As the case must go down for another trial and as the validity
of the contract set out in the declaration may be involved in that
trial, it is proper that we should express our opinion upon it if,
as it was offered to be proved, the contract was not in writing,
but rested in parol.
We have referred particularly to the contract in the forepart of
this opinion. The question raised is whether or not it is within
the statute of frauds, and therefore void. The law in this
district, it is admitted, is a copy of the English statute on the
subject.
The patent had some twelve years to run after the date of this
contract, which was in June, 1844.
The words of the statute are:
"That no suit shall be brought to charge any person upon any
agreement that was not to be performed in one year unless there was
some memorandum or note in writing of the agreement,"
&c. Now the substance of the contract is that the defendants
are to pay in money a certain proportion of the ascertained value
of the fuel saved at stated intervals throughout the period of
twelve years if the boat to which the cut-off is attached should
last so long.
Page 72 U. S. 595
The statute applies to contracts not wholly to be performed
within the year. [
Footnote
6]
It is insisted, however, that this contract is not within it
because it may, be the happening of a certain event -- the loss or
destruction of the boat -- terminate within the year. The answer is
that the possibility of defeasance does not make it the less a
contract not to be performed within the year.
In
Birch v. Earl of Liverpool, [
Footnote 7] a contract for hire of a coach for five
years for a stipulated price per year was held to be within the
statute although determinable by either party at any time within
that period.
The same principle was again held in
Dobson v. Espie.
[
Footnote 8] That case was the
hiring of a traveler for more than a year, subject to a
determination by three months' notice. Pollock, C.B., in delivering
his opinion, stated that the object of the enactment was to prevent
contracts not to be performed within the year from being vouched by
parol evidence, when at a future period any question might arise as
to their terms. No doubt, he further observes, formerly it was the
practice to construe not only penal statutes, but statutes which
interfered with the common law, as strictly as possible; but in my
opinion that is not the proper course of proceeding. Alderson, B.,
observed:
"The very circumstance that the contract exceeds the year brings
it within the statute. If it were not so, contracts for any number
of years might be made by parol, provided they contained a
defeasance which might come into operation before the end of the
first year."
We might refer to many other cases arising upon this statute.
They are numerous, and not always consistent, for the reason,
probably, given by Pollock, C.B., that the courts at first
construed the enactment as strictly as possible, as it interfered
with the common law. We think the construction given in the cases
referred to is sound, and adopt it. The
Page 72 U. S. 596
result is that the contract is question is void, not being in
writing. It is a contract not to be performed within the year,
subject to a defeasance by the happening of a certain event, which
might or might not occur within that time. All the mischiefs which
the statute was intended to remedy apply with full force to it.
Judgment reversed, the cause remitted, and venire de
novo.
[
Footnote 1]
See the case in
65 U. S. 24
How. 334.
[
Footnote 2]
Pages
65 U. S. 333,
65 U. S. 346.
[
Footnote 3]
As reported in 24 How.
[
Footnote 4]
Wood v. Jackson, 8 Wendell 10, 16, 31, 36;
Washington Packet Co. v.
Sickles, 24 How. 333,
65 U. S. 343,
65 U. S. 345;
Lawrence v. Hunt, 10 Wendell 80; Cowen & Hill's Notes
to Phillips' Evidence Part 2, N. 121.
[
Footnote 5]
Wood v. Jackson, 8 Wendell 36;
Lawrence v.
Hunt, 10
id. 85;
Hitchin v. Campbell, 2
Blackstone, 827; Saunders on Pleading and Evidence Pt. I 260.
[
Footnote 6]
Boydell v. Drummond, 11 East 142;
Broadwell v.
Getman, 2 Denio 87.
[
Footnote 7]
9 Barnewall & Cresswell 392.
[
Footnote 8]
2 Hurlstone & Norman 81.
MR. JUSTICE MILLER, dissenting.
I dissent from the opinion of the Court just delivered.
The points in the case before us for review are whether there
was such a contract made as that set forth in the first count of
the declaration, and if so, whether it was valid.
The only evidence of both these propositions offered by
plaintiffs was the record of the former trial, and the testimony of
certain jurors on that trial, tending to show that their verdict
was based on the same contract which is described in the first
count of the declaration in the present suit. If that testimony did
not establish both those propositions, then plaintiffs failed in
their action, for they offered no other evidence on that issue. If
that testimony did show that the contract on which the verdict in
the former suit was rendered was the one set up in the first count
of the present declaration, then the record established both the
making of that contract and its valid character, for a judgment was
rendered on that verdict which is still in full force and
unreversed. If the testimony of the witnesses tended to show this
fact, then it should go to the jury, for its sufficiency to
establish the fact was for them and not for the court. No charge on
this subject was asked by defendants, and none given by the court
to which defendants excepted.
The main exception sustained by this Court is to the offer of
defendants to prove by a competent witness that the contract proved
in the former trial was a parol contract.
Did this testimony have any tendency to disprove that of the
witnesses of plaintiffs who testified as to the contract on
Page 72 U. S. 597
which the former verdict was founded? I am not able to see
it.
The witness did not propose to swear that the terms of the
contract proved on the former trial differed from the terms of the
contract counted on in this suit. He was expected to state that the
only contract proved in the former suit was a parol contract. None
of the witnesses of the plaintiffs said it was other than a parol
contract. It was not pretended that the contract relied on in the
first suit was a written contract.
It is said that if the contract was in parol, it is void as
against the statute of frauds, and that question could not be
concluded by the former judgment.
I think the law is otherwise. In the case of
Smith v.
Whiting, [
Footnote 2/1] the
Supreme Court of Massachusetts said:
"It is apparent from the pleadings that this very demand has
been once tried and determined, and although the court may have
decided wrong in rejecting the evidence in the former suit, yet
this is not the way to remedy the misfortune. Exceptions might have
been filed to the opinions of the judge, or a new trial had upon
petition. We must presume that this very matter has been tried, and
it is never permitted to overrule the judgment of a court having
jurisdiction by another action."
To the same effect is the case of
Grant v. Button in
the Supreme Court of New York. [
Footnote 2/2]
If the law be, as claimed, that there can be no estoppel as to
matter of law, but only as to matter of fact, what becomes of the
estoppels by judgments rendered on demurrer? The authorities in
favor of estoppels in this class of cases are numerous. The case of
Goodrich v. City, decided at this term, [
Footnote 2/3] is directly in point. There the
judgment of the state court of Illinois on demurrer in a former
suit between the same parties was held a bar although it was
intimated that if it had been an open question, this Court might
have differed with the Illinois court in the construction of the
law. All decisions on demurrer must necessarily be on questions of
law, for the demurrer admits the facts pleaded and only
Page 72 U. S. 598
raises the questions of law which grow out of those facts. If
the principle contended for were true, there could be no estoppel
by demurrer.
If, then, the jury were satisfied from the record in the former
case and from the testimony of the witnesses that the terms of the
contract on which that verdict was founded were the same as the
special contract set out in the present suit, then the verdict and
judgment in that case established the existence and validity of
that contract for the purposes of this suit, and whenever it may be
called in question between the same parties in relation to the same
transaction. And the testimony offered, if admitted, would have had
no tendency to disprove either of those propositions, but only to
show that the court erred in its judgment in the first suit.
Again, if I understand the opinion aright, it is said that it
must be made to appear from the record of the former suit and the
testimony of the witnesses that the former verdict was necessarily
founded on the contract set out in this suit. It seems to me that
when this case was last here before, [
Footnote 2/4] the Court then stated the proposition much
short of this. For the opinion, after alluding to the indefinite
character of the pleadings in many actions, says:
"It was consequently decided that it was not necessary as
between parties and privies that the record should show the
question upon which the right of the plaintiff to recover, or the
validity of the defense depended, for it to operate conclusively;
but only that the same matter in controversy might have been
litigated, and that extrinsic evidence would be admitted to prove
that the particular question was material, and was in fact
contested, and that it was referred to the decision of the
jury."
The rule, as I understand it, is that to render such former
judgment conclusive, it is only necessary to show that the same
matter might have been decided and actually was decided.
Again it is said in the opinion that the testimony of the jurors
in the former trial was incompetent to disclose the grounds of
their decision in the former case. I think the
Page 72 U. S. 599
rule in those courts where it is adopted at all, and it is
rejected wholly in many, is that a juror cannot be permitted to
impeach his verdict, but that he is never refused to sustain it.
And this only applies to proceedings to set aside that verdict, and
not to cases where the question of what was actually decided may
arise in another proceeding.
On the whole, I am of opinion that there was but one question in
the case, and that was whether the former verdict and judgment were
based on the same contract counted on in the present suit, and that
the evidence which went to the jury had a tendency to establish
that fact, and the evidence rejected by the court had no tendency
to disprove it.
[
Footnote 2/1]
11 Mass. 445.
[
Footnote 2/2]
14 Johnson 377.
[
Footnote 2/3]
See supra, p. <|72 U.S. 566|>566, last preceding
case.
[
Footnote 2/4]
As reported in 24 How.
