#### Horatio R. Wilcox *et al.*plaintiffs, *vs.*Uriah M. Lee *et al.*defendants.

1. A judgment rendered for the defendants in an action to recover the price of goods sold, because they were sold on a credit which had not expired when the action was brought, is not a bar to a second action brought after such credit has expired.

2. Where such judgment does not affirmatively disclose the ground upon which it was rendered, but there was evidence that uncontradicted proof of such unexpired credit wasjntroduced upon the trial of the issues in the action in which such judgment was given, and that the existence of such credit was made the only question on submitting the case to the court on such trial, it will be presumed that the judgment proceeded solely on that ground, notwithstanding evidence in support of another defense was given on the trial.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 10, 1863;

decided November 28, 1863.

This was a motion by the defendants for a new trial, on exceptions taken at the trial, and there ordered to be heard at general term in the first instance.

The action is for goods sold and delivered in March 1861, to a firm composed of the defendants and one Geo. A. Dunlap, at the agreed price of $450, on eight months credit. The defendants, Ripley *&*Hoyt, in their answer set up a former trial in the Marine Court in July, 1861, for the same cause of action in a suit by these plaintiffs against these defendants, and said Dunlap and allege in their answer that “judgment therein was rendered in favor of the defendants, *on a question of fact,*on the 24th of July, 1861.” The sale and delivery of the goods in March 1861, to the defendants at the agreed price of $450, on a credit of eight months, was fully proved on the present trial. The defendants then proved that in July, 1861, these plaintiffs sued these defendants and Dunlap in the Marine Court, and in their complaint claimed to recover for goods sold and delivered to such defendants in March, 1861, at the agreed price of $450. The complaint in that action did not state whether the goods were or were not sold on a credit, but it alleged that the $450 was due with interest from April 1,1861, and prayed judgment accordingly.

*356The answer of Ripley & Hoyt in that suit denied each and every allegation in the complaint.

It was proved on the trial of this action that, on the trial in the Marine Court, evidence was given of the sale and delivery of the goods, and that they were sold on a credit of eight months. *George B. Bonta,*the person who made the sale, was asked with reference, to his testimony on the former trial thus : “ Q. did you not testify that the sale was a cash sale, and you applied to them for a note, according to the custom of that kind of sale.”

“ A. I applied for a note; it was not given ; it was then considered a cash sale, according to the custom of merchants.”

It was also "proved that the question raised and argued in the Marine Court was, whether the goods were sold on a credit of eight months, and that this was the only question argued on submitting the case.

The judge who tried the cause, testified that he did not recollect on what ground he decided it, “whether on the ground of unexpired credit, or on the ground that the sale was made by Bonta individually.” The defendants sought to prove that *Bonta*sold the goods in his own name and on his own account. No judgment was entered in the docket in the Marine Court, but there was indorsed on the summons and complaint, in the hand writing of the judge, the words — “ Judgment for defendants with costs and ten dollars allowance.” On the present trial, the judge ordered a verdict for the plaintiffs for $481.50, the amount of the goods and interest, and the defendants excepted to the decision.

*L. S. Chatfield,*for the defendants.

I. The former trial and decision was a full and complete bar to this action. Every thing was the same, the parties, the pleadings, the cause of action and the evidence the same. That cause was finally submitted on the merits and decided by the court. *(McGuinty*v. *Herrick, 5 Wend.*244. *Brockway*v. *Kinney,*2 *John.*210. *Rice*v. *King,*7 *id.*20. *Thomas*v. *Rumsey,*6 *id.*26. *Johnson*v. *Smith,*8 *id.*383. *Platner*
      *357v. Best, 11 *id. 530.*15 *id.*432. *Phillips v. Berick,*16 *id.*136. *Gardner*v. *Buckbee, 3 Cowen,*120. *Coles*v. *Carter, 6 id. 691. Morgan*v. *Plumb,*9 *Wend.*287.)

II. The *record*was conclusive, and could not be varied by parol. The record of the former trial was complete, and established a sufficient bar. *(Sutton*v. *Dillaye,*3 *Barb.*529. *Noyes*v. *Butler, 6 id.*613. *Foster*v. *Trull,*12 *John.*456. *Brush*v. *Taggart,*7 id 19.)

III. There is no force in the objection that the judgment was not docketed. If the cause is finally *submitted*to the court it is enough, whether it is *decided*or not—but here it was decided. *(Felter*v. *Mulliner,*2 *John.*181. *Burt*v. *Sternburgh,*4 *Cowen,*559.) The grounds of decision were not inquirable into. The cause was submitted on the merits, and it is not material on what ground the judge decided. The judgment as entered was, “judgment for defendants, with costs, and ten dollars allowance,” and was not a nonsuit or dismissal.

IV. The action could not be maintained against these defendants. Hoyt was not a member of the firm when the goods were sold, and no notice of dissolution to Wilcox & Draper was necessary.

*Gilbert Dean,*for the plaintiffs.

I. Where a former judgment is set up as a defense, parol evidence is admissible to show what was actually in controversy between the parties, and the grounds upon which the judgment was rendered. *(Doty*v. *Brown,*4 *Comst.*71. 8 *Wend.*9. 4 *Barb.*457. 36 *id.*95.)

II. The decision of the Marine Court, ordering judgment for the defendants, was therefore merely a judgment of nonsuit, and no bar to this action.

III. The judge who tried this cause properly ordered judgment for the plaintiff, as there was no disputed question of fact. But if there had been, the defendant should have specifically excepted, or requested him to submit the question to the jury.

*358By the Court, Bosworth, Ch. J.

The defendants have had the goods for which the verdict was ordered, and have not paid for them. The questioñ now is, whether the former trial and judgment therein, are a bar to a recovery in this action. It is quite clear that on the trial in the Marine Court, as in this, the evidence of the sale of the goods, at the agreed price of $450, on a credit of eight months, was uncontradicted. The evidence -on the trial shows that, in the suit in the Marine Court, Bonta testified that he sold the goods as agent of the plaintiffs,- and so informed the defendants at the time of the sale. It does not appear that there was any attempt to contradict him, and no evidence in conflict with such being the facts, was given on the trial.

This case comes therefore to this point. Judgment was given for the defendants in the Marine Court, on uncontradicted proof that the sale was on a credit of eight months, which had not elapsed. It can not be conjectured that it proceeded. on any other ground or fact. On what ground, or fact found, the judge decided it, he does not recollect, and I lay his testimony out of view. But it does appear that the only question discussed before him, on the close of the evidence was, whether the credit had expired. I think it should be inferred that this was the only question of fact which he determined adversely to the plaintiffs, and finding that it had not, and it being his duty to so find, he gave judgment for the defendants on that ground, and for that cause.

If this be the correct view, then it is clear that it was not determined in the Marine Court, that the plaintiffs did not sell'and deliver the goods at the agreed price of $450.

If it had affirmatively appeared on the present trial, that the judgment in the Marine Court was given expressly on the ground that the suit was prematurely brought, then *Quackenbush*v. *Ehle,*(5 *Barb.*469, 472,) would be an authority that the former trial and judgment was not a bar. In the present case, the contrary does not appear, either by the record or the proofs : and presumptively, the first judgment could not have proceeded on any other grpund.

*359
      *Quackenbush*v. *Ehle,*is not in conflict with. *Morgan*v. *Plumb,*(9 *Wend.*287, 317.) In the latter case, the plaintiff was entitled to recover, upon the evidence given, but judgment was given against him, contrary to the law and the evidence. His remedy was a review on a case or exceptions ; and not by another suit, on the same evidence.

It can not be affirmed, or established inferentially, that the judgment in the Marine Court determined any fact, except the fact that that suit was brought before the agreed term of credit had expired. As it does not appear that any other fact was determined, and as that fact was undisputed and entitled the defendants to judgment, and as presumptively no other fact could have been determined in their favor, I think the suit and judgment do not bar this action.

The facts that the plaintiffs sold the goods to the defendants at the agreed price of $450, and that the defendants have not paid any part thereof, have not been passed upon and decided against the plaintiffs. But a fact consistent with them, and proved on the first trial by uncontradicted evidence, viz. that the goods were sold on a credit of eight months, was found in the Marine Court, and having been found, the defendants had judgment.

Holding that such judgment is not a bar to this action, does not • conflict with the rule that “ a fact which has once been directly decided shall not be again disputed between the same partiesnor with the rule that *“*the judgment of a court of concurrent jurisdiction directly on the point is as a plea, a bar, and as evidence conclusive between the same parties upon the same matter directly in question in another court.” *(Wood*v. *Jackson,*8 *Wend.*9. *Doty*v. *Brown,*4 *N. Y. Rep.*71.)

I .think the motion for a new trial should be denied and judgment for the plaintiffs on the verdict ordered.