#### James Smith *versus*James Kelly.

Where matters in controversy, between parties, have once been put in issue by them before a court of competent authority, and passed upon by that tribuhal, in an action brought by the present defendant against the present plaintiff, the *same*matters cannot *again*be drawn into controversy in *another*action, in a different Court, brought by the former defendant against the former plaintiff.

The defendant in the former action, by submitting to the decision of the Court in which it was brought, becomes bound by it; and he cannot cause the decision to be collaterally revived, by bringing an action against the former plaintiff

If the defendant in the first action feels himself aggrieved by the decision of the first tribunal, his course is to except to the opinion of the Judge, and cause his decision to be reviewed by a competent tribunal. If he acquiesces, however, in the decision, by not excepting to it, he is bound by it.

This was a special action on the case, brought to recover damages of the defendant, for not furnishing to the plaintiff certain goods, according to his undertaking on four certain orders drawn on the defendant by one Edmund M. Blunt, and by him accepted in blank.

One of the orders was dated in November 1826, the others in January 1827. The first was for sixty dollars; the others were for $100 each, and they were all drawn in the following form, vix “.

*218Mr. James Kelly,

New-York, Jan. 3, 1827.

Sir, Value received pay bearer on demand, grates, fenders, pans, shovels and tongs, at cash prices, to the value of one hundred dollars.

Respectfully,

Edm. M. Blunt.

This order was accepted in the usual manner, by the drawee writing his name across the face of it.

The declaration contained *sixteen*counts, to which was pleaded the general issue, accompanied by a *notice,*that the defendant would give in evidence in bar of the action, *& former trial*in a suit in the Court of Common Pleas, of the City of New-York wherein the said Kelly was plaintiff and the said Smith was defendant, in which the same matter sought to be examined in this suit, had been submitted to a jury and passed upon by them.

At the trial in this court (which took place on the third of February, 1829, before the Chief Justice) the plaintiff called the said Blunt as a witness, who testified, that in the month of January 1827, he negotiated the four orders in question to the plaintiff and received of him their full amount. That prior to the negotiating of the orders, the plaintiff was engaged in building some houses, and the witness solicited the plaintiff to allow *him*to furnish the houses with grates, pans, and fenders, and represented that he could obtaih these articles of the defendant, on *accepted orders,*as cheap as the plaintiff could purchase them for cash ; and he referred Smith *to*Kelly for the accuracy of his statement.

Blunt also testified, that he subsequently saw Kelly, and was informed by him, that the plaintiff had called upon the defendant in relation to the orders; that he had satisfied his inquiries relative to the goods, and had informed him, *that he would accept the orders, and deliver the articles under them.*That the witness then negotiated the orders to the plaintiff, the same having been previously accepted, by Kelly’s writing his name upon the face of each of the orders. That some time after he had negotiated the orders, he saw Kelly, who informed him, that he was furnishing the goods upon the orders, and that he had let the plaintiff have *219two grates which he had made for other persons, were negotiated within a few days after their date. The orders

The plaintiff then called one Devereaux as a witness, who testified, that he was in the employment of the defendant, and that in the month of November, 1887, the defendant sent him to the plaintiff, in relation to a grate which had been made to be sent into the country. On this occasion, Kelly desired him to tell the plaintiff, that he was not willing to deliver any more grates on Blunt’s orders, as he had been deceived by him. The plaintiff replied, that he would see justice done to Kelly, as he had a copy right of a book in his possession, belonging to Blunt.

These witnesses were examined on the trial in the Common Pleas, and testified to the same facts, which they now stated; and upon their evidence the plaintiff rested his cause.

The defendant then offered in evidence the record of the judgment in the former suit in the Common Pleas, from which it appeared, that Kelly had brought an action of assumpsit in that Court against Smith for goods sold and delivered, and the jury returned a verdict for $156.18 in his favour. The particulars of the plaintiff’s demand in that action amounting to $388.68, were admitted in evidence at this trial, and among them were enumerated sundry grates fenders, shovels, tongs, &c., delivered by Kelly to Smith.

The present plaintiff to his plea in the former suit added a notice of set off, which contained copies of the four orders upon which this action was brought.

DanielLord, Jun. Esq, was then called by the plaintiff, and testified that he was the counsel for Smith in the former suit in the Common Pleas. At that trial, the defendant made no attempt to set off the orders against the plaintiff’s demands, but he offered evidence of the parol acceptance of the orders by Kelly, and of his collateral undertaking to deliver the articles upon them, according to the testimony of Blunt. Smith also contended, that the goods mentioned in the plaintiff’s bill of particulars, had been delivered on said orders and there was no attempt made to impeach the orders in any way. Mr. Lord, in summing up the defendants cause to the jury on that trial contended, that the mat*220ters in evidence were a bar to the plaintiff’s right of recovery. That Kelly was bound by his undertaking to deliver the goods *on the orders,*and would not rescind his contract, or in any way discharge himself from his obligations to deliver the goods on the orders.

Mr. Lord also testified, that he confidently expected a verdict for the defendant, although the Judge *charged the jury, that Kelly had a right whenever he pleased to refuse, to deliver any_ more goods upon the orders,*and that if Smith did *thereafter*receive any more goods, he would be liable to pay Kelly for them.

The plaintiff also called his honor, Judge Irving, as a witness, and he stated, that the principal point in the cause, according to the best of his recollection, related to the question, whether the goods were furnished upon the credit of Blunt or Smith. The Judge also produced and read his minutes of the whole trial; from which it appeared that Kelly had, in the first instance, accepted the four orders unconditionally, and had also promised to furnish the goods under them. But subsequently, owing to some delinquency on the part of Blunt in not making good his contracts, Kelly declined to deliver *any more*goods *under the orders,*although he had at the time of such refusal already furnished a part of them, amounting to one hundred and sixty dollars, and upwards. It appeared, however, that Smith had encouraged Kelly to furnish more goods/ after his refusal to do so, by some promise of indemnity to be derived from the copy-right in his hands.

The defendant then called Blunt again, and proposed to en-quire of him as to the original consideration of the orders. The plaintiff objected to such an examination, upon the ground, that the consideration of the orders as between the original parties, could not be inquired into *in this action.*The Chief Justice, however, overruled the objection, and the plaintiff excepted to his opinion.

Blunt then gave a history of the orders, and the manner in which they were issued, from which it appeared, that he had been in the habit of obtaining them, by giving his own notes in exchange. Some of these notes had been paid, but others remained unsatisfied, and at this time, Kelly held his notes for $250 and upwards, which were wholly unsatisfied.

*221The defendant alsb called another witness, to. show, that the goods furnished after Kelly’s refusal, were furnished upon the credit of Smith, and not upon the faith of the orders. He also called one of the jurors empannelled in the former cause, and he testified that the course of the testimony on that trial, corresponded with the present, and the same evidence was given.

The Chief Justice charged the Jury, that if they believed the testimony of Mr. Lord, then that the former trial, was *conclusive*between the parties, and that they ought to find for the defendant.

The plaintiff having excepted to this charge, the Jury returned a verdict for the defendant.

The plaintiff now moved for a new trial, and Mr. *Smith,inpropria persona,*contended, I. that Kelly was concluded by his acceptance of the orders, and by furnishing a part of the goods under them. After such acts, he became liable for the full amount of the orders, and had no right to interpose any objections against them. He did not contend, that these orders were so entirely negotiable^ as that an action could be maintained against Kelly by *any*holder of the orders; but he asserted that Kelly had, by his own acts, fully recognised his claims, and could not afterwards repudiate the contract. He had commenced a fulfilment of his agreement with the plaintiff, by delivering a part of the goods, and he had. no right afterwards, when he knew that Smith had paid Blunt the full amount of the orders, to rescind the contract, because Blunt became delinquent. The plaintiff had nothing to do with the consideration passing between the defendant and Blunt; for, value received, is admitted upon the face of the orders.

II. The former verdict in no way prejudiced the plaintiff’s right to maintain the present action. The Jury on that trial, considered the goods furnished by Kelly, after his refusal to furnish any more on Blunt’s orders, as having been furnished on the individual credit of Smith: and they accordingly found a verdict against the present plaintiff for all those items in the defendant’s bill of particulars, which were furnished after Kelly’s refusal. The plaintiff therefore, has a right in this action to recover the difference between the face of the orders and the amount deducted by .the Jury, *222or to recover of Kelly a sum in damages for the non-fulfilment of his contract. The charge of the Chief Justice was therefore erro-neous, and the former trial and judgment form no bar to this action. If the question of consideration was material, then he contended that Blunt had in fact, paid Kelly the principal part of the money for which *these*orders were given, and if he was indebted to the defendant on other accounts, or for other orders, that could not prejudice the plaintiff. The orders could not have been set *off*against the claims of Kelly, and the Judge of the Common Pleas only meant to charge the Jury upon the evidence, so as to exclude a presumption that the goods were delivered upon the orders, and his discharge was right. But if the charge of the Chief Justice is correct, then the plaintiff is without a remedy. It is perfectly clear that he paid Blunt the full value of these orders, with the knowledge and assent of Kelly, and the latter is under every moral obligation to fulfil his contract. If a new trial is denied, then the defendant escapes with impunity; and the plaintiff is deluded out of his rights by the arts of counsel, which may be termed a sort of judicial legerdemain.

*Mr. Anthon, contra,*for the defendant contended,

that the whole subject-matter, which formed the ground of the present action, had already been before a competent tribunal, on a trial between the same *parties;*that a. Jury had passed upon the *same*facts, and a judgment had been rendered upon the finding of the Jury, which was binding and conclusive. *[Stark. Ev.*198. *Gardner v. Bugbee,*3 *Cow. R.*120. *Burt v. Steenburgh,*4 *Ib.*559. *Stafford v.*Clarke. 2 *Bing. R.*377.]

The whole question, which has now been raised, was presented before the Common Pleas, and the self-same evidence appeared. The present plaintiff then denied his responsibility to Kelly, upon the ground that the latter had furnished the goods for which the action was brought, not upon the credit of Smith, but upon the orders of Blunt. The Jury found that this defendant had in fact furnished *a part*of the goods upon the credit of the orders; but they also found that *he had*furnished *another*part upon the credit of Smith alone, having refused to trust Blunt any longer.

*223The present plaintiff also contended on that occasion, that Kelly was liable at all events to him, for the full amount of the orders; that he had *contracted*with him by the force of his acceptance and his subsequent acts, and that therefore he (Smith) was not liable in law to pay for any part of the articles furnished. What more does he claim here *1*He now contends that the orders were binding upon Smith; and that as the Judge of the Common Pleas decided, that the orders were not available to their fullest extent,—because Kelly had a right to repudiate them at any time as to third persons,—they are now available by way of attack, because, in truth, Kelly had *not*a right to repudiate the orders as to a third person, who had paid value for them, with Kelly’s consent and approbation.

The two questions are therefore precisely the same. If Kelly was liable to Smith to the full extent of the orders, then he had a perfect defence to the former action, and the Judge of the Common Pleas erred in his charge to the Jury. If Smith was dissatisfied with that charge, he should have excepted, and should have reviewed that opinion before the proper tribunal. Instead of taking that course, he has acquiesced in that judgment, and is now concluded by his own acts. If, however, the Judge was right on that occasion, then the plaintiff has no cause of action here, because Kelly had a right to refuse a delivery of any goods upon the orders.

Under any aspect of the case, the same identical questions have been presented, tried, and disposed of. The former judgment is conclusive between the parties, and the charge of the Chief Justice was perfectly correct.

If, however, it were necessary or proper to go into the matters of the former trial, it would be easy to show, that the Judge, who tried that cause, was correct in his charge, and that the Jury found according to the evidence, and the very right of the case. But the defendant now rests himself upon his first proposition, and is secure.

*Smith,*in reply.

I admit that the charge of Judge Irving was correct, and I contend that the Jury had a right to find, that a part of the goods *224were furnished upon my individual credit, and not upon the orders. If so, I was bound to pay for those goods; but it does not follow, that because Kelly refused to perform his contract, and because he furnished a certain part of the goods upon my responsibility, that therefore he is *absolved*from his contract. The former trial was no more than this. The plaintiff there proved that he refused to deliver me any more of the specified articles *upon the orders,*because he did not feel himself bound *to*me upon them. But he offers to furnish me with goods upon my own responsibility. I accede to the terms, and order the goods ; must I not pay for them *1*And does it follow from this, that Kelly is not legally bound by his acceptance of Blunt’s orders, and that I have no right to try that question with him here 1 My promise to pay for the goods, was aside from the contract, and had nothing to do with it; and the sole question to be disposed of is, whether Kelly is, or is not responsible upon his acceptance, under all the circumstances of this case. If he is, then I am entitled to recover; if he is not, there is an end of the question. The scope of Judge Irving’s charge was merely this, that I might he liable to pay for the goods furnished after Kelly’s refusal, *notwithstanding*the contract, because there was evidence to show, that the goods were not furnished *under*the contract. This was perfectly correct, and left the parties the right of trying the naked question, as to the defendant’s obligations upon the orders. I contend, therefore, that the former trial is no bar to this action, and that I am entitled to a new trial.

Oakley J.

The plaintiff in this case moves for a new trial, for the misdirection of the Judge. It is a special action on the case, to recover damages for the refusal of the defendant to deliver certain articles, in pursuance of orders, drawn on and accepted by him, and subsequently negotiated to the plaintiff. It appeared in evidence, that the defendant delivered a portion of the articles, under the orders, and then refused to proceed any further, on the delivery, alleging that he had been defrauded by the person, who drew the orders. Articles, however, of the same description were subsequently furnished by the defendant to the plaintiff, and as *225action was brought in the Court of Common Pleas, to recover the amount of his bill. That action was tried in the Common Pleas, and the same evidence was given as in the present case. The present plaintiff then contended, that the goods in question were delivered under the said orders, and his defence, according to the evidence given by his counsel, *Mr.*Lord, was rested on the ground, that the then plaintiff was bound to deliver the articles, under the said orders, and could not rescind them. The Judge, at that trial, charged the Jury, as Mr. Lord stated, that *Kelly*had a right, whenever he pleased, to refuse delivering any more goods on the orders. The Jury in that case found a verdict for Kelly, for the goods furnished subsequent to the notice given by him to *Smith,*that he would not consider the orders as any longer binding upon him.

If the charge of the presiding Judge, at that trial, was correctly stated by Mr. Lord, it cannot be doubted, that the same questions, both of law and fact, were then considered, which have arisen in the case now before us; and the Jury, in the former case, must have found their verdict in pursuance of the rule laid down by the Judge. If that decision of the Court of Common Pleas was erroneous, the present plaintiff should have excepted to it. He cannot review it in a new action. Having acquiesced in the law, as pronounced by a court of competent authority, he is bound by it. There was, therefore, no error committed by the Judge' in the present case, in instructing the Jury, that if they believed the testimony of *Lord,*the former trial was conclusive between the parties. The motion for a new trial must therefore be denied.

*Motion for a new trial denied.*

[James Smith, *in pro. per. Atty. for the plff.*Chas. O’Conner, *Atty. for the deft.]*