Opinion
07-07-1886
EASTWOOD v. WORRALL and others.
George W. Hubbell, for complainant. P. H. Gilhooly, for defendants.
On motion to strike out answer, and answer by way of cross-bill. Facts appear in the opinion.
George W. Hubbell, for complainant.
P. H. Gilhooly, for defendants.
BIRD, V. C. As may be done under the rules, the defendants have answered, and, in the same answer, claim affirmative relief by way of cross-bill. In the answer they set up that the mortgage sought to be foreclosed is not yet due. They declare that there was an agreement extending the time for the payment of the principal sum, first to the fifth of February, 1885, and afterwards to fifth of February, 1888. The complainant asks to have this part of the answer stricken out, because the question thereby raised has once been adjudicated. It appears that the complainant had filed a bill of complaint to foreclose this same mortgage prior to the fifth day of February, 1886, and that the defendant answered, setting up various agreements extending the time for the payment of the principal sum, one of which agreements it was alleged was made on the fifth of February, 1882, and another in the year 1883, each extending the time of payment of the principal sum five years. Replication was filed, and the case went to a hearing. It appears, by the conclusions filed, that the court found that the agreement alleged to have been made February 5, 1882, had been made, and that the bill, having been filed before the expiration of the five years, was prematurely filed, and was ordered to be dismissed. No other allegation in the answer was considered. As above stated, the present answer sets up and relies upon an agreement made February 5, 1883, extending the period of payment five years from that date, and insists that this bill has been prematurely filed.
Can it be said that that question has been considered and determined by the court? I think not. All courts feel it their duty not to hear the same case between the same parties the second time. There must be an end of litigation. But in no sense can it be said that the defendants in this case were heard in the former suit upon the allegation that the time of payment was extended five years from February 7, 1883. It was not necessary to the disposition of the cause. There may have been, and there may not have been, evidence upon that branch of the case. The evidence may have been slight and insufficient, or abundant, and yet the court may not have considered it; or the court may have considered it, and avoided expressing an opinion concerning it, because it reached a conclusion that the bill should be dismissed upon another branch of the case. I am not prepared to say that the question now should be dealt with as one already adjudicated. I am not called upon in this case to declare any rule of law, but by way of reason I may be permitted to say that it would be dangerous, indeed, to establish it as a principle that in every case when the complainant's bill has been dismissed the defendant is estopped from answering, in another suit by the same complainant, for the same cause, any of the matters of defense which he presented by his answer in the former suit. The mischief of any such doctrine will be discovered upon the slightest reflection. The complainant fails on this ground.
He moves to strike out so much of the answer as is in the nature of a cross-bill, setting up an agreement between the parties to the effect that, if the defendant would procure certain collateral securities to be executed and delivered to the complainant, the complainant would execute and deliver to the defendant a writing extending the time for payment of his mortgage for five years, and binding himself to accept of the principal sum whenever tendered, and, upon such payment, to assign his bond and mortgage and all collaterals to any person whom the defendant might designate, and from thence to accept 6 per cent. interest, instead of 7 per cent., and also to permit the taxes and assessments upon the property to be adjusted according to the convenience of the defendant. He moves to strike this out because the answer by way of cross-bill does not allege a tender of the amount due; insisting that the spirit of the agreement is that the defendant shall first tender the amount due, and that then the complainant is obliged to assign. I think the complainant is very far from a correct conclusion in this respect. The agreement set forth is that the complainant promised to execute a writing, and to deliver it to the defendant, containing certain stipulations, not upon the payment of the amount due upon the bond and mortgage, but upon the delivery to the complainant of certain collaterals. It alleges the delivery of the collaterals to the complainant, and his neglect and refusal to execute the writing named. The defendant claims the benefit of the writing. I do not think it is an answer to this to say that he has not alleged in his cross-bill that he made a tender of the money in order to get the writing. The execution of the written agreement did not depend upon the tender of the money, but upon the tender of the collaterals.
The defendant asks to have this agreement enforced; that is, that the complainant may be compelled to execute the writing which it is alleged he promised to execute. I think the allegation is sufficient to sustain the prayer of the cross-bill.
The complainant has failed on both motions. I will advise an order accordingly, with costs.