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payable to the order of Medlock, upon the trial of the trover case, the judge, in effect, indorsement of which he is sued in the pres charged the jury that the plaintiff, being a ent case, had been accepted by Moore, party to the decree, was estopped from deMarsh, & Co. 3 payment pro tanto of his nying the right of the defendant to hold the indebtedness to them, for which he was en negroes during the lifetime of his wife. titled to a credit upon the notes on which This court held such charge to be erroneous, they were then suing him, and that he had upon the ground that, in order for the desubsequently paid to them the balance left cree in the equity cause to be rendered, “it due thereon in cash. It is obvious that, if was not a matter of necessity that the court this defense was found by the jury to be sus. should first determine the question” which tained by the evidence, their verdict, finding was involved in the trover suit. Benning, generally in his favor, and that his three J., who delivered the opinion, said: “Was individual notes and the deed which he had the right asserted in the action of trover given to secure them be surrendered and such that it had, of necessity, to be detercanceled, and Moore, Marsh, & Co. be re mined by the court in the equity suit before quired to execute a deed reconveying the it could render tne decree which it did renproperty described in the security deed to der in that suit?” Then, after discussing him, naturally followed; and it was wholly this question, he concluded that "it was at unnecessary for them to pass upon the mer- least not a matter of necessity that the its of his other defenses. It is impossible to court, before making the decree, tell, from the record introduced in support should have determined” this question, and of the plea of estoppel by judgment, upon that therefore the decree could be no bar to which of the defenses set up by Medlock in the action of trover. his equitable proceeding against Moore, Another case which is equally in point is Marsh, & Co. the verdict therein was ren- Brudley V. Johnson, 49 Ga. 412. In that dered, as the verdict was general. It is evi- case the complainant, as the widow and heir dent that, if that verdict was based upon the at law of Bradley, filed a bill against the deabove-stated defense, the decree founded fendant, as the administrator of Bradley, thereon is no bar to the present action for an accounting and distribution of Bradagainst him, for the verdict would then lev's estate, with a prayer for injunction. mean no more than that Medlock, after pay. On the trial of the case, Johnson, the deing his three individual notes which he had fendant administrator, introduced in evigiven to Moore, Marsh, & Co., with the two dence an exemplification from the court of notes of Zachry and Richmond, indorsed by ordinary of the county, from which it aphim, and a certain sum in cash to cover the peared that he had made application to that balance, was entitled to have these individ court for letters of administration upon ual notes surrendered to him, and the deed suci estate, to which the complainant had which he had given to secure them canceled, entered a caveat, claiming that she, as the and the property therein described recon- widow of Bradley, was entitled to the adveyed to him.

ministration; that the ordinary had granted A case decided by this court which is di. letters of administration to her; that an rectly in point is Hunter v. Davis, 19 Ga.. appeal had been entered to the superior 413, where it was held: “A judgment is not court; and that the trial in that court rea technical estoppel as to any matter, if the sulted in a judgment that the appellant, matter is not such that it had, of necessity, Johnson, was entitled to administration to be determined by the court and jury be- upon Bradley's estate, which judgment had fore the court could give the judgment.” In been certified to the court of ordinary and that case the original trustee named in a made the judgment of that court. The addeed which conveyed certain negroes and ministrator relied upon this evidence ot) property in trust for specified pur- showing that the question whether the composes and beneficiaries had been removed for plainant was the widow of Bradley had been cause, and another trustee appointed in his made in the case in the court of ordinary, stead; and the new trustee had brought an and there determined against her; and, action of trover for the recovery of four of upon such evidence, under the charge of the these negroes, against the person who had court, he obtained a verdict and judgment them in possession, who was the husband of in his favor. This court, in reversing the one of the beneficiaries. Upon the trial of judgment, held that the judgment in the this action the defendant introduced in evi- court of ordinary "was conclusive as to the dence a transcript of the record of a suit in fact that letters of administration had been equity against him and his wife and the granted to Johnson on Bradley's estate, original trustee, brought by the other bene- when offered in evidence on the trial of the ficiaries of the trust, and relied upon the de- equity cause, but it was not conclusive on cree therein rendered as an estoppel upon that trial upon the point as to whether the the plaintiff in the trover suit. Upon the complainant was the widow of Bradley;"

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that it was not an adjudication directly out indicating which of them was thus litupon that point, and did not purport to de- igated and upon which the judgment was cide that question. In the opinion of the rendered,—the whole subject matter of the court, Chief Justice Warner, after saying action will be at large and open to a new this much, continued as follows: “More contention, unless this uncertainty be reover, it does not affirmatively appear from moved by extrinsic evidence showing the prethe verdict and judgment thereon that the cise point involved and determined.” This fact of her being the widow of Bradley was case was followed in De Sollar v. Hanscome, the oniy question made and decided by the 158 U. S. 221, 39 L. ed. 959, 15 Sup. Ct. Rep. judgment of the court of ordinary.

816, the facts of which case make the deci. The judgment itself is not directly upon sion there rendered peculiarly in point in that point, and, unless the judgment of the the case with which we are dealing. In that court of ordinary was rendered directly case De Sollar filed a bill against Hanscome upon that point, as shown by the record, the for the specific performance of an agreement complainant was not estopped by that judg. for the sale of certain real estate, made with ment from proving that she was the widow him by an agent of the defendant. The deof Bradley, on the trial of the equity cause." fendant claimed that the agent had exl'pon a subsequent trial of the case in the ceeded his authority, but the plaintiff consuperior court, the trial judge held that the tended that the defendant, after full knowlcomplainant was estopped by the judgment edge of the agreement made by his agent, in the court of ordinary, and the jury, un

had ratified it. De Sollar also contended der his charge, found in favor of the admin that, hy a judgment which had been renistrator; and, upon writ of error to this dered in his favor in a common-law action court, the judgment was again reversed. which Hanscome had instituted against him This court then held: "A judgment in the to recover damages alleged to have been suscourt of ordinary, on an issue as to the tained in consequence of his having placed grant of administration on an estate, that this agreement and a certain letter written the letters do issue to one Johnson, does not by Hanscome to his agent upon record, estop a woman claiming to be the widow of Hanscome was estopped to deny that he had the deceased from the assertion of her right ratified the act of his agent in making the to the estate by bill in equity, though she contract in dispute. Mr. Justice Brewer, in was a party to the suit in the ordinary's delivering the opinion, said: “The plaintiff court, and the question there was as to her insists—and that is the burden of his conmarriage to deceased, and though Johnson tention—that the judgment in the law aewas contesting with her at the instance of tion is conclusive as to the fact of dethe heirs at law of deceased.” [55 Ga. 354.] fendant's assent to the contract as executed Judge Jackson, delivering the opinion, said by his agent, while the defendant claims that the facts in the record did not affect that it settles only that this plaintiff, actthe principle ruled in 49 Ga., and that it was ing under the advice of counsel in placing "immaterial for what reason the ordinary the papers ou record, was guilty of no wil. granted Johnson the administration; he was ful or malicious wrong, and therefore not not bound to pass upon the question of the liable in damages.” Then, after showing marriage,”—and quoted the headnote in from the charge of the court in the action 111!nter v. Davis. 19 Ga. 413. To the same for damages that the jury trying that case effect, see Henderson v. Fox, 80 Ga. 479, 6 “were at liberty to find for the defendant if S. E. 164.

they thought that in fact the plaintiff had A leading case in this country, which has suffered no damages by the filing for record been often approvingly cited and followed, is of the letter and agreement,” notwithstandRussell v. Place, 94 U. S. 606, 608, 24 L. ed. ing the judge had charged them that “the 214, 215, in which it was held: “It is un chief question" was whether the plaintiff had doubtedly settled law that a judgment of a ratified what had been done in his name by court of competent jurisdiction upon a ques- his agent, he said: “There is in this case tion directly involved in one suit is con- no extrinsic testimony tending to show upon clusive as to that question in another suit what the verdict of the jury was based. We between the same parties. But to this opera- have simply the record of the former judgtion of the judgment it must appear, either ment, including therein the testimony and upon the face of the record, or be shown by the charge of the court, from which to deterextrinsic evidence, that the precise question mine that fact; and, in the light of the was raised and determined in the former charge, it is obviously a matter of doubt suit. If there be any uncertainty on this whether the jury found that the agreement head in the record, -as, for example, if it made by the agent was ratified by the prinappear that several distinct matters may cipal, or that no damage had in fact been have been litigated, upon one or more of sustained by placing the papers upon record. which the judgment may have passed, with- / We are not now concerned with the inquiry whether the instructions of the court were might have been based upon the lack of nocorrect or not. We look to them simply to tice to the town of the existence of the obsee what questions were submitted to the struction; and the testimony of jurors jury, and, if they left it open to the jury to

is not competent for the purpose of find for the defendant upon either of the two showing that their verdict was in fact based propositions, and the verdict does not specify solely on issues material in the second acupon which the jury acted, there can be no tion.” In the opinion, Chase, J., said: “As certainty that they found upon one rather the record does not show upon which of the than the other. The principal contention issues the former judgment was founded, it therefore, of the plaintiff, fails.” The prin- was incumbent upon the defendants, in orciple ruled was stated both in the opinion der to establish an estoppel by that judg. and the headnote as follows: "It is of the ment, to prove by extrinsic evidence that it essence of estoppel by judgment that it is was founded upon the matters that are in certain that the precise fact was determined issue in this action.” by the former judgment.”

The principle is briefly and succinctly Another case directly in point is Greene v. stated in Thompson v. N. T. Bushnell Co. 80 Jerchants, & Planters' Bank, 73 Miss. 542, Fed. 332, as follows: “Unless it appears 19 So. 350, where it was held: “Where one from the record or consistent extrinsic evihas been sued as acceptor of a lost bill of ex-dence that the particular matter sought to change alleged to have been drawn by a cer- be concluded was necessarily tried and detertain firm to its own order, and indorsed by mined, so that the judgment could not have the firm and one of the members thereof, and been rendered without deciding it, there is on his pleas of non est factum and payment, no estoppel.” and the evidence in support of the same, the It follows that the trial judge erred when, defendant has defeated a recovery, he can. at the close of the evidence, he withdrew the not, in a second suit against him as acceptor case from the jury, sustained the plea of of a lost bill in all respects similar to the res judicata, and dismissed the plaintiffs' ac. preceding bill, save that it was alleged to tion. have been drawn not by the firm, but by said 2. The plaintiffs offered in evidence a pamember thereof, maintain a plea of res judi- per which purported to be an amendment cata, since it is impossible to say on which which had been offered by Moore, Marsh, & of his pleas the jury found for him in the Co. to their answer to the equitable petition prior suit, and, if not on that of payment, of Medlock against them, and which had the only matter determined was that he did been disallowed by the court. The court renot accept the particular bill then sued on, fused to allow this paper to be introduced in which would not preclude an action on the evidence, upon the ground that it was no bill that he did accept."

part of the record in the case of Medlock v. Still another is Augir v. Ryan, 63 Minn. Moore, Marsh, & Co. It does not appear 373, 65 N. W. 640, where it was held: "In that when this paper was offered in evidence order that a former judgment should bind any question was raised as to the necessity parties in a subsequent action by way of for proving that it really was what it purestoppel as to any question of fact, it must ported to be. The title and description of appear, from the judgment or by extrinsic the case which appeared at its head was: evidence, that such question was within the “R. O. Medlock v. Moore, Marsh, & Co. In issues of the former action, and actually liti- Equity, in Gwinnett Superior Court, March gated and determined therein. If such Term, 1900.” What purported to be the orjudgment and extrinsic evidence leave it a der of the judge disallowing the amendment matter of conjecture as to what questions of appeared at the end of the document, in the fact were litigated and determined in the following language: “This amendment disformer action, the judgment is not an es. allowed by the court, the makers of the notes toppel.” It appeared in that case, as it does (against whom Medlock, as a surety, would in this, that several defenses had been inter- have the right to proceed) not being legally posed in the former action, but it did not in court.” This was signed officially in the appear upon what issue the verdict in favor name of the judge of the western circuit,of the defendant was founded.

the same judge who was presiding in the In Hearn v. Boston & M. R. Co. 67 N. H. trial in the present case. The paper was, 320, 29 Atl. 970, it was held: “A town hav- as we have seen, excluded simply upon the ing been sued for damages caused by an ob- ground that it was no part of the record in struction in a highway, and the person who the case to which it purported to relate. placed the obstruction there having been This proposed and rejected amendment notified of the suit and having conducted the prayed that, in the event it should be deterdefense, a general verdict for the defendant mined that Moore, Marsh, & Co. had, as alis not a bar to a subsequent suit against ieged by Medlock, accepted the two notes of such person for the same injuries, since it | Zachry and Richmond, payable to the order of Medlock, and indorsed hy him, in part, not parties to that case. This was a circumpayment of the three individual notes of stance tending to show that the court did Medlock, upon which they were suing him in not then consider that the question of Medthe city court of Lawrenceville, then they lock’s liability as indorser on the Zachry should have judgment against him for the and Richmond notes was involved in that amount of the Zachry and Richmond notes. case, and that it was not determined by the While this paper could not be introduced as judgment which is relied upon in the presa part of the record in the case of Medlock v. ent case as an estoppel. We are clearly oi Moore, Marsh, Co., yet it showed upon its opinion that the mere fact that this paper face that in that case Moore, Marsh, & Co. was no part of the record in the case of Med. had sought to have the question as to their lock v. Moore, Marsh, & Co. did not render right to recover against Medlock as indorser it inadmissible in evidence. Butler v. Tifupon the very two notes now sued on deter-ton, T. & G. R. Co. 121 Ga. $17, 49 S. E. mined, in the event the jury should find that | 763. they, as alleged by him, had accepted these Judgment reversed. notes as payment pro tanto of his three individual notes upon which they were then All the Justices concur, except Cobb, J., suing him, and that they were not allowed disqualified. to do so because Zachry and Richmond were

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1. A municipal corporation which has imposed the duty upon property A

PPEAL by plaintiff from a judgment of owners of keeping the sidewalks in the Court of Common Pleas for Lawfront of their property free from ice rence County in favor of defendants in an under penalty, and has provided that, in case action brought to hold them liable for damof their neglect to remove the ice, it will

ages which plaintiff had been compelled to be removed by the city at their expense, as. sumes the duty of keeping the walks clear: pay because of an injury to a traveler who and, in case it is held liable for injury to fell upon the sidewalk in front of their propone falling upon the walk, it cannot recover erty. Affirmed. over against the property owner

The facts are stated in the opinion. theory that he was primarily liable for the

Messrs. James A. Gardner and Robert injury.

K. : 2. Owners of property in nossession of tenants

not bound to keep watch to see that ice dangerous to

lic nuisance,-an obstruction upon the sidetravel does not form on the walks walk, a hindrance and a danger to public in front of it which are properly constructed travel. and in proper repair, where their negligent The primary du'y of keeping the sidewalk construction of their buildings does not con- in repair is upon the abutting property tribute to its formation ; and therefore they cannot be held liable for injuries to a traveler by falling upon ice of the existence of

Lohr v. Philipsburg, 156 Pa. 249, 27 Atl. which they have no notice.

133; Duncan v. Philadelphia, 173 Pa. 551, 3. Placing a conductor pipe so to 51 Am. St. Rep. 780, 34 Atl. 235; Pitts

lead water from the roof of a build- burg use of Flanagan v. Fay, 8 Pa. Super. ing adjoining a sidewalk and empty Ct. 275; Pittsburg use of Flanagan v. Daly, it upon the walk in the manner customary 5 Pa. Super. Ct. 532; Mintzer v. Greenough, in the community is not a nuisance per se, where it does not ordinarily interfere with 192 Pa. 144, 43 Atl. 465; Dutton v. Lanstravel; and the property owner cannot be held downe, 198 Pa. 563, 53 L. R. A. 469, 82 Am. liable to one who is injured by ice formed St. Rep. 814, 48 Atl. 494. upon the walk many years after the con

Where a municipality has been sued, and

has paid a judgment for injuries sustained NOTE.-As to liability for permitting water either by a defective sidewalk, or by reason to accumulate and freeze on sidewalks to the of a nuisance caused or maintained by the injury of travelers, see also note to Brown v. White, 58 L. R. A. 321.

property owner, recovery over can be had

Owner.

owner.

by the municipality against the property | 523, 53 L. R. A. 805, 61 S. W. 859; ?

Shearm. & Redf. Neg. § 709a. Brookville v. Arthurs, 130 Pa. 501, 18 Atl. The ordinances passed under the police 1076, 152 Pa. 334, 25 Atl. 551; Chester v. power create no new liability on the part of First Nat. Bank, 9 Pa. Super. Ct. 517: the municipality, nor does failure to enforce Mintzer v. Greenough, 192 Pa. 137, 43 Atl. them. 465; Dutton v. Lansdowne, 198 Pa. 563, 53 Betham v. Philadelphia, 196 Pa. 312, 46 L. R. A. 469, 82 Am. St. Rep. 814, 48 Au. Atl. 448; Elliott v. Philadelphia, 75 Pa. 494; Reading v. Reiner, 167 Pa. 41, 31 Atl. 347, 15 Am. Rep. 591; Boyd v. Insurance 357; Brown v. White, 202 Pa. 297, 58 L. R. Patrol, 113 Pa. 270, 6 Atl. 536; PhiladelA. 321, 51 Atl. 962; Kirchner v. Smith, 207 phia & R. R. Co. v. Ervin, 89 Pa. 75, 33 Pa. 431, 56 Atl. 947; Dickson v. Hollister, Am. Rep. 726; Philadelphia & R. R. Co. v. 123 Pa. 429, 10 Am. St. Rep. 533, 16 At!. Boyer, 97 Pa. 102; Davidson v. Schuylkill 484; Gates v. Pennsylvania R. Co. 150 Pa. Traction Co. 4 Pa. Super. Ct. 94; McDade 50, 16 L. R. A. 554, 24 Atl. 638; Philadel- v. Chester, 117 Pa. 414, 2 Am. St. Rep. 681, phia Co. v. Central Traction Co. 165 Pa. 461, 12 Atl. 421; Allebrand v. Duquesne, 11 Pa. 30 Atl. 934; Isham v. Broderick, 89 Minn. Super. Ct. 223; Even v. Philadelphia, 194 397, 95 N. W. 224; Leahan v. Cochran, 178 Pa. 518, 75 Am. St. Rep. 712, 45 Atl. 339 : Mass. 566, 53 L. R. A. 891, 86 Am. St. Rep. Grant v. Erie, 69 Pa. 420, S Am. Rep. 272; 506, 60 N. E. 382; Lowell v. Short, 4 Cush. Chattanooga v. Reid, 3 Mun. Corp. Cas. 308. 275; West Boylston v. Jason, 102 Mass. and note, 103 Tenn. 616, 53 S. W. 937; 341; Westfield v. Mayo, 122 Mass. 100, 23 Tarbutton v. Tennille, 110 Ga. 90, 35 S. E. Am. Rep. 292; Chicago v. Robbins, 2 Black, 282; 2 Dill. Mun. Corp. 4th ed. $$ 950-952 418, 17 L. ed. 298, 4 Wall. 657, 18 L. ed. notes. 427; Reedy v. St. Louis Brewing Asso. 161 The provision in the sidewalk ordinance Mo. 523, 53 L. R. A. 805, 61 S. W. 859; introduced by the defendants under objec2 Dill. Mun. Corp. $$ 1032-1035.

tions, which required the street commisThe nuisance in this case was occasioned sioner to see that “the work is done, or by the construction of the conductors with caused to be done, according to the proviout any provision being made to carry the sions of this ordinance,” or like provisions, water across or under the sidewalk, and was imposed no duty or liability on the city. a continual nuisance of which the defend- Harrison v. Collins, 86 Pa. 153, 27 Am. ants had notice.

Rep. 699;Coates v. Chapman, 195 Pa. 117, Gates v. Pennsylvania R. Co. 150 Pa. 50, 45 Atl. 676; Wray v. Evans, 80 Pa. 105 ; 16 L. R. A. 554, 24 Atl. 638; Fowler v. White v. Philadelphia, 201 Pa. 512, 51 Atl. Jersey Shore, 17 Pa. Super. Ct. 375; Read 332; Uppington v. New York, 165 N. Y. 222, ing v. Reiner, 167 Pa. 42, 31 Atl. 357; 53 L. R. A. 550, 59 N. E. 91; 1 Smith, Isham v. Broderick, 89 Minn. 397, 95 N. W. Mun. Corp. $ 744, p. 745. 224.

The only defenses open to a defendant in The casting of the water from the roofs ca ses involving defects in the sidewalk are, of the buildings, through a large conductor, il) that he did not own the property, (2) out upon the sidewalk, there to freeze in a that he was not under any duty or obliridge of ice, without making any provision gation to keep the sidewalk in good repair, to carry the same away, was clearly a nui- (3) that the accident did not happen

through any neglect of duty on his part. Brown v. White, 202 Pa. 297, 58 L. R. A. Fowler v. Jersey Shore, 17 Pa. Super. Ct. 321, 51 Atl. 962; Reedy v. St. Louis Brew- 372. ing Asso. 161 Mo. 523, 53 L. R. A. 805, 61 While the city may be primarily liable S. W. 859; Isham v. Broderick, 89 Minn. to a person injured, by reason of its duty 397, 95 N. W. 224.

to see that the sidewalk is reasonably safe, The landowner is not relieved from liabil. yet the primary duty of keeping a sideity when he leases his premises having a walk in order is upon the property owner, nuisance thereon.

and that of the city is secondary. The neg. Reading v. Reiner, 167 Pa. 41, 31 Atl. ligence of the city consisted in not compel357; Knauss v. Brua, 107 Pa. 85; Fow v. ling the property owners to remove the deRoberts, 108 Pa. 489; Wunder v. McLean, fect or nuisance. 134 Pa. 334, 19 Am. St. Rep. 702, 19 Lohr v. Philipsburg, 156 Pa. 246, 27 Atl. Atl. 749; Brown v. White, 202 Pa. 297, 133; Fowler v. Jersey Shore, 17 Pa. Super. 58 L. R. A, 321, 51 Atl. 962; Kirchner v. Ct. 373; Dutton v. Lansdowne, 198 Pa. 566, Smith, 207 Pa. 431, 56 Atl. 947; Lewin v. 53 L. R. A. 469, 82 Am. St. Rep. 814, 48 Pauli, 19 Pa. Super. Ct. 447; Isham v. Atl. 494; West Boylston v. Mason, 102 Broderick, 89 Minn. 397, 95 N. W. 224; Mass. 341. Reedy v. St. Louis Brewing Asso. 161 Mo. The city and the property owner are not

ance.

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