Walsh v. Chesapeake & Ohio Canal Co.

Yellott, J., delivered the opinion of the Court. This is an appeal from the judgment of the Circuit Court for Washington County in an action of trover. In that action the appellants, the plaintiffs below, sought the recovery of damages for the wrongful conversion of certain articles of personal property specifically enumerated in their declaration. The appellee, the defendant below, in addition to the general plea of not guilty, filed a plea of former recovery; relying upon the fact, that in relation to the matters then in controversy, there had been a prior adjudication between the same parties; and that the former- ⁴²⁵ trial having resulted in a verdict for the plaintiffs, there was a subsisting judgment operating as a bar to a recovery in this action.

It is apparent from the record that the appellants sold to the appellee a wharf for the sum of one hundred thousand dollars; there being on said wharf at the time of the sale, numerous articles of personal property, in relation to the ownership of which a controversy subsequently arose; the appellee claiming that said articles were purchased with the wharf; and the appellants disputing this claim. The controversy resulted in an action of assumpsit being brought by the appellants against the appellee in the Circuit Court for Allegany County; and in that Court the appellants were successful in obtaining a judgment. It is that judgment which is pleaded as a bar to the prosecution of this suit. In the trial of this cause in the Court below the appellants’ evidence of their right of possession to the property in dispute, and its wrongful conversion by the opposite party, having been met by the adduction of proof on the part of the appellee of a countervailing tendency in support of its special plea, the appellee offered in evidence the record of a former suit, accompanied with proof tending to identify the cause of action in that controversy with the matters now in litigation.

The appellants offered evidence in rebuttal. A portion of the record in the former suit is incorporated in this record, hut there has been an omission of the hill of particulars. The following agreement, signed by counsel, is intended to supply this omission: “It is agreed that at the trial of the former case between the parties to this case, (the record of which is offered in evidence) the .plaintiffs sued for and included in their hill of particulars, several items of property not included in the declaration in this cause, and that at the said first trial the plaintiffs offered evidence as to said property not in the declaration in this cause, that they had sold the same to the defendant. ⁴²⁶ “ The testimony of the plaintiffs in the former trial as to the property included in the declaration in this cause, was, that they had not sold the same to the defendant when they sold the wharf for $100,000 ; but the personal property was to be exempted; but the plaintiffs claim that the defendant was liable in assumpsit because the defendant had taken possession of the property.” The first instruction given by the Court below, and excepted to by the plaintiffs, related to the legal effect in this suit of a former recovery in the action of assumpsit brought to trial in the Circuit Court for Allegany County; it being a concession that the plaintiffs in that action obtained a verdict and judgment. The jury are told in this instruction that if they find that the plaintiffs in the trial of the former cause, “ claimed, as shown by the bill of particulars as shown by the record of said suit, offered in evidence, and offered evidence in said suit, the same as given in this present action, and that the defendant in the prior suit offered the same evidence as it has offered in this case, and that the Court gave instructions in the former suit, as shown by the record in that case; and that after such instructions were granted, the plaintiffs insisted before the jury that they were entitled to recover for the articles set forth in their bill of particulars, and pressed before the jury such claim, and that the articles, the conversion of which is sued for in this action, were all embraced in the bill of particulars in the former case, and were the subjects of contest as aforesaid, then this action cannot be maintained by the plaintiffs.” Upon the legal questions presented by the plaintiffs’ exception to this instruction the adjudication of this Court is invoked.

That a subsisting judgment, rendered by a Court of