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• Title: Mackintosh v. Chambers Et Al.
• Author : Supreme Court of Minnesota
• Release Date : January 02, 1934
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

RUGG, Chief Justice. This is an action of contract. The two counts in the plaintiffs declaration are alleged to be for the same cause of action. Allegations (common to both counts) are that the plaintiff says that the said defendants owe him a specified sum of money with interest for a balance due of money (in count 1) received by the defendants to the plaintiffs use and (in count 2) lent by the said plaintiff to the said defendants. The defendant Chambers pleaded general denial. The defendant Turner pleaded general denial and res judicata. It is stated in the exceptions that the plaintiff, an attorney at law, appeared pro se, that the defendants were not represented by counsel, and that only the defendant Turner appeared at the trial and testified. Turner (called as a witness by the plaintiff) testified that his aid was asked by the defendant Chambers in procuring a loan, that on November 23, 1921, the plaintiff handed $305 in cash to Chambers and that the two defendants signed and delivered to the plaintiff a promissory note for that amount on that date. The plaintiff on demand produced the note, which was received in evidence subject to his exception on the stated ground that it was a different cause of action. It appeared that immediately after the payment of $305 to Chambers and the signing and delivery of the note by both defendants to the plaintiff, the latter demanded and received from Chambers $155 in cash, which was then and there credited as a payment on the note, and that subsequently $5 was paid on the principal and $1.88 on the interest. The plaintiff testified that he took the note of the defendants as evidence of the loan and that the present action is to recover the balance of the $305 lent. The plaintiff admitted and it appeared of record that by writ dated July 1, 1922, he brought an action against the defendants to recover (as alleged in the declaration in that action) the amount of the note and interest. Copy of the note was annexed to that declaration. An examination of the record in this court when that case was before us in Mackintosh, Petitioner, 268 Mass. 138, 167 N.E. 273, shows that at that trial there was no evidence or testimony except that which came through the plaintiff and witnesses put on the stand by him; that the defendants did not testify and produced no witnesses; that it was the contention of the defendants at that trial that the note upon which the action was brought came within the Small Loans Act so-called, G. L. c. 140, 96 et seq.; that it was a loan for $150 and not for $305; that the plaintiff was engaged in the business of making small loans and that evidence in relation thereto brought out on cross-examination was admitted. That action was tried to a jury, verdict was returned for the defendants, and judgment was entered in their favor on August 15, 1929. Manifestly, that action was tried on its merits. In the case at bar the trial Judge found for both defendants on the ground that the causes of action in the earlier action at law between the same parties and in the present action were the same and that the matter was res judicata as to both defendants. The plaintiff excepted to the ruling that the adjudication in the action on the note was a bar to the present action and to the ruling that that defence was open to Chambers, who had not pleaded res judicata.

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